HomeMy WebLinkAboutRegulating Cable Television in the 1990s Paul S Ryerson Norman M Sinel Introduction•
REGULATING CABLE TELEVISION IN THE
1990s
Paul S. Ryerson*
Norman M. Sinel**
INTRODUCTION
Franchising and regulating cable television systems, in today's
environment, present local governments and their legal advisers with
difficult issues. The regulation of cable also poses questions of great
practical importance for thousands of communities.
Local governments have granted franchises to the majority of the
7,800 cable systems that exist in the United States.' These 7,800
cable systems serve over 38 million subscribers, representing approxi-
mately half the homes in the United States.2 Despite widespread mis-
information regarding the extent to which the Cable Communications
Policy Act of 1984 (Cable Act) has cut back on the responsibilities of
local governments in this area, local communities retain substantial
powers to encourage and monitor the development of cable systems
that will most effectively serve the communications needs and inter-
ests of their citizens.
Moreover, vast numbers of cable franchises that were signed dur-
ing the 1970s, typically for terms of fifteen or twenty years, will ex-
pire and come due for possible renewal throughout the next decade.
In connection with such renewals, the Cable Act imposes on local
governments new statutory obligations, which can be triggered a full
three years before a current franchise expires.` Consequently,
thousands of local governments, including those that might prefer to
forego an active role concerning cable, will necessarily confront com-
plex cable regulatory issues throughout the 1990s.
Apart from its immediate practical importance, the curious mix
* Partner, Arnold & Porter, Washington, D.C.; B.A., 1963, Yale University; J.D., 1966,
Stanford University.
** Partner, Arnold & Porter, Washington, D.C.; B.A., 1968, Wesleyan University; J.D.,
1971, Columbia University.
The authors have appeared as counsel for several local governments in certain cases dis-
cussed in this Article.
1. TELEVISION & CABLE FAcrsooK A-41 (Television Digest, Inc. ed. 1987).
2. Id.
3. 47 U.S.C. §§ 521-559 (Supp. III 1985).
4. See generally 47 U.S.C. § 546 (Supp. III 1985).
4
608 Stetson Law Review [Vol. XVII
of federal and local regulation that has resulted from the Cable Act
also raises fundamental issues concerning the proper function of state
and local governments. It has recently been observed that modern
federalism is premised more on expediency than anything else:
[A]s the United States embarks today on its third century of feder-
alism, it appears that such crucial matters as the role, responsibili-
ties, functions and powers of the states are to be determined, not by
any guiding constitutional principle, but rather by a pragmatic —
we'll work it out as we go along — political process enacted in the
Congress of the United States and unconstrained by any compre-
hensible concept of federalism, constitutional or otherwise.5 ,
This observation seems especially apt with regard to the shared fed-
eral and local regulatory responsibilities codified in the Cable Act —
a regulatory scheme that was created largely by historical accident
and modified on the basis of political expediency, rather than in re-
sponse to any unifying regulatory philosophy.
This Article will consider how the Cable Act is likely to function
in meeting the regulatory demands of the next decade with respect to
cable. This Article will initially discuss the purposes and background
of local government regulation of cable systems. It will then describe
how the Cable Act was enacted in response to ongoing uncertainties
with regard to the permissible scope of local and federal regulation.
Next, the Article will explain the procedural framework for cable sys-
tem franchise renewals established by the Cable Act, and then con-
sider the substantive requirements that local governments may con-
tinue to enforce under the Cable Act. Both of these areas will be
analyzed under the terms of the statute as enacted and in light of the
gloss placed on the Act by the initial judicial interpretations. Finally,
the Article will briefly consider the impact of recent first amendment
cases affecting cable, which may impact the role of local governments
independently of the powers and limitations set forth in the 1984
federal legislation.
• In summary, the Article concludes that the imperfect political
compromise that led to the. Cable Act has produced a workable regu-
latory framework in which local governments can continue to take
steps to ensure that cable systems are responsive to the needs of their
citizens. However, many local governments will confront difficult and
complicated issues concerning cable throughout the next decade. A
5. Aurbach & Davis, Federalism for the Third Century?, 19 URB. LAW. 445, 447 (1987).
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fundamental choice local governments may face is whether to con-
tinue to take an active role in this area, consistent with typical past
practices and the apparent vision of Congress in the Cable Act, or,
instead, to abdicate regulatory responsibility for cable in the hope of
conserving- administrative resources and minimizing potential
liabilities.8
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I. BACKGROUND OF CABLE REGULATION
A. Pre -Cable Act Regulation.
Cable television has traditionally been regulated primarily by lo-
cal governments through the franchising process? Although franchise
agreements vary in their complexity and substance, local franchises
have commonly covered such matters as services, rates, and the ca-
pacity and characteristics of the cable system.
Many local governments have concluded in recent years that
they have a substantial interest in cable television. Cable companies
typically use valuable resources of local jurisdictions such as public
streets and thoroughfares in order to construct and operate their sys-
tems. Cable systems also have the potential to deliver a broad range
of public services, including municipal, health care, and educational
services. In addition, cable has the potential capacity to expand the
outlets available for expression in a community and to provide locally
oriented programming. Consequently, many governments have taken
the position that cable franchises should include terms and condi-
tions which ensure that the needs and interests of the residents and
institutions of the local community are met.
The Communications Act of 1934,8 which established the basic
framework for federal regulation of the communications industry,
was enacted long before the advent of cable television. For many
years, the Federal Communications Commission (FCC) supple-
mented and, in part, preempted local cable franchising and regula-
tion on the ground that such federal regulation was "reasonably an -
E5, 447 (1987).
6. Some recent decisions suggest that franchising authorities may be held liable for dam-
ages and attorney's fees under the Civil Rights Act, 42 U.S.C. § 1983 (1982), for violating the •
asserted first amendment rights of potential cable operators that are denied franchises or of
existing system operators that are denied renewal or required to accept various franchise provi-
sions that they find objectionable. See infra,text accompanying notes 112-19.
7. See City of Los Angeles v. Preferied Communications, Inc., 106 S. Ct. 2034 11986);
Pacific West Cable Co. v. City of Sacramento,'798 F.2d 353 (9th Cir. 1986).
8. 47 U.S.C.. § 151 (1982).
610 Stetson Law Review [Vol. XVII
cillary to the effective performance of the Commission's various
responsibilities for the regulation of television broadcasting" under
the. Communications Act 9 As a'.result, for years the limits of FCC,
state and local authority were far . from clear, nor were there clear
policy directives at the national level upon which. regulatory policy
could be based.10 Strong pressure' from local governments 'as well as
the cable industry provided the impetus for the development of de-
finitive statutory guidelines."
B. Enactment of Federal Cable Legislation
It was in this context that the Cable Act, which constituted the
first major change in the Communications Act in fifty years, was en-
acted. Beginning in 1981, Congress, particularly the Senate, gave seri-
ous consideration to legislation that generally would have limited
state and local regulation of cable television.12 By 1983, discussions
had commenced between the National League of Cities (NLC) and
9. United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968).
10. See, e.g., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); FCC v. Midwest
Video Corp., 440 U.S. 689 (1979); Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir.), cert.
denied, 434 U.S. 829 (1977); National Ass'n Regulatory Util. Comm'rs v. FCC, 533 F.2d 601
(D.C. Cir. 1976).
11. As then Chief Justice Burger noted in United States v. Midwest Video Corp., 406 U.S.
649, 676 (1972) (concurring opinion): "The almost explosive development of [cable television]
suggests the need of a comprehensive re-examination of the statutory scheme as it relates to
this new development, so that the basic policies are considered by Congress and not left en-
tirely to the Commission and the courts."
12. For an extensive description by some of the participants of the history of the Cable
Act, on which this summary is based, see CABLE FRANCHISING AND REGULATION: A LOCAL Gov-
ERNMENT GUIDE TO THE NEW LAW I-17, to -23 (C. Pols, N. Sinel & P. Ryerson eds. 1985). On
July 27, 1981, the Senate Committee on Commerce, Science, and Transportation reported the
"Telecommunications Competition and Deregulation Act of 1981" (S. 898), a comprehensive
telecommunications bill that included, among other things, provisions prohibiting the regula-
tion of cable subscriber rates and limiting franchise fees to the cost of regulation. S. REP. No.
170, 97th Cong., 1st Sess. (1981). These provisions .were subsequently deleted on the Senate
floor by a 59 to 34 vote on October 6, 1981, for procedural reasons, at the request of Senator
Barry Goldwater (R -Ariz.), Chairman of the Commerce Committee's Subcommittee on Commu-
nications. See 127 CONG. REC. S11,135 (daily ed. Oct. 6, 1981). Again in 1982, Senator Goldwa-
ter introduced the "Cable Telecommunications Act of 1982" (S. 2172), which would have re-
stricted state and local regulation of cable television in numerous ways. This legislation was
approved by the Senate Commerce Committee by a 13 to 3 vote on July 22, 1982. S. REP. No.
518, 97th Cong., 2d Sess. (1982). However, the 97th Congress adjourned without completing
action on the bill. -
In 1983, Senator Goldwater introduced the "Cable Telecommunications Act of 1983" (S.
66). 129 CONG. REC. S325 (daily ed. Jan. 26, 1983). S. 66, as introduced, was substantially simi-
lar to S. 2172, but included even more restrictive provisions concerning state and local
regulation.
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able television]
as it relates to
d not left en -
the National Cable Television Association (NCTA) in an effort to
reach a compromise agreement that would meet the concerns 'of both
the cable industry and Cities:
The discussions between NLC and NCTA concluded in an agree-
ment in principle, which was ratified by the boards of both organiza-
tions in March of 1983. Subsequently, the pending Senate bill, S.
66," was rewritten to include elements of this agreement, and it was
approved on April 22, 1983, by the Senate Commerce Committee."
Senate Bill 66 received final Senate approval on June 14, 1983.'5
Concurrently, Representative Wirth had introduced the "Cable
Telecommunications Act of 1983" (H.R. 4103),16 a bill which was gen-
erally similar to S. 66, in the House. The House Telecommunications
Subcommittee approved the bill on November 16, 1983, despite wide-
spread opposition by cities and public interest groups. The bill was
then referred to the parent Energy and Commerce Committee for
further action.
By January 1984, H.R. 4103 was cosponsored by a majority of
the members of the House Energy and Commerce Committee and
approximately eighty members of the House. In light of this strong
support in the House for legislation imposing major restrictions on
state and local regulation, and the earlier approval of similar legisla-
tion by the Senate, it appeared likely that Congress would enact leg-
islation dramatically limiting state and local regulation of cable tele-
vision. However, Representative John Dingell, Jr., Chairman of the
House Energy and Commerce Committee, strongly opposed the legis-
lation and, at a January 26, 1984, committee meeting of the U.S.
Conference of Mayors (the Conference), he called for further negotia-
tions among representatives of the NLC, the Conference, and the
NCTA.
A negotiating team representing local government interests was
appointed by NLC and the Conference. After numerous meetings, a
detailed agreement was reached by the negotiating teams on May 28,
1984, and subsequently endorsed by the various participating
organizations..
The agreement was then incorporated into RR. 4103 as a substi-
tute for the bill's originEil provisions, and additional changes were
13. S. 66;98th Cong., 1st Sess. (1983).
14. S. REP. No. 67, 98th Cong., 1st Sess. (1983).
15. 129 Corm. REC. S8,324-25 (daily ed. June 14, 1983).
16. H.R. 4103, 98th Cong., 1st Sess. (1983).
jI
;
612 Stetson Law Review [Vol. XVII
made to the bill at the request of various members of the Energy and
Commerce Committee. The bill was renamed the "Cable Franchise
Policy and Communications Act of 1984." On June 26, 1984, the bill
received the unanimous approval of, the House Energy - and Com-
mercedorniriittee in a voice vote and was formally reported by the
. Committee on August 1, 1984.17 ‘r •
There was mounting dissatisfaction in. the cable industry, how-
ever, with various provisions of H.R. 4103, including those affecting
franchise renewals, rate regulation, services, and franchise fees. The
NCTA board of directors, meeting in Washington, D.C. on July 17,
1984, withdrew its support for the bill unless additional changes were
made, and requested a new round of negotiations.
The negotiating teams met in Washington, D.C., on September
19, 1984, and the meeting concluded without agreement. On Septem-
ber 21, 1984, Representative Dingell released a statement strongly
criticizing the cable industry for its unwillingness to compromise.
Following Representative Dingell's statement, the NCTA board of di-
rectors met in an emergency meeting on September 24, 1984, in
Washington, D.C. and dramatically reduced the cable industry's de-
mands. The refinements to the bill still sought by the 'industry were
subsequently approved by the negotiating team representing the
NLC and the Conference. The full House, amending the bill to in-
clude these refinements, then approved H.R. 4103 in a voice vote on
October 2, 1984.
The Senate ultimately adopted the language of H.R. 4103 as a
substitute for S. 66, with some changes that did not significantly alter
the basic provisions of the agreement. On October 11, 1984, one day
prior to the adjournment of Congress, the full Senate approved this
new version of S. 66, renamed the "Cable Communications Policy Act
of 1984," in a voice vote. The bill was immediately returned to the
House for final approval, where it was once again approved in a voice
vote (avoiding the need for a conference committee). The bill was
signed into law by President Reagan on October 30, 1984.
As the history and timing of passage of the Cable Act demon-
strate, the statute, in the form in which it was ultimately enacted,
reflected practical compromises that were made by some of the inter-
est groups most directly affected by the legislation — local franchis-
ing authorities and the cable industry. Like all compromises, the
17. H.R. REP. No. 934, 98th Cong., 2d Sess. 5, reprinted in 1984 U.S. CODE CONG. & AD-
MIN. Nmvs 4655.
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Vol. XVII
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CONG. & AD -
1988]
Regulating Cable Television 613
Cable Act contains provisions that probably did not fully satisfy the
participants. From the standpoint of most local governments, how-
ever, the critical question is not whether the Cable Act sets forth an
ideal regulatory framework, but rather whether it still permits local
governments to function responsibly with regard to cable and, partic-
ularly, in connection with the franchise renewals that will- increas-
ingly demand attention in the coming years. As explained in the dis-
cussion that follows, on balance, the Cable Act preserves important
prerogatives of local governments in this respect.
II. FRANCHISE RENEWALS UNDER THE CABLE ACT
One of the express purposes of the Cable Act is "to ... establish
an orderly process for franchise renewal which protects cable opera-
tors against unfair denials of renewal where the operator's past per-
formance and proposal for future performance meet the standards es-
tablished by this subchapter."18 This purpose is the foundation for
section 626 of the Act, which contains substantive and procedural.
standards for the consideration of renewal, and limits the possible
grounds for denial of renewa1.19 As a result, the renewal rights of a
franchisee are no longer governed largely by the terms of the
franchise or local law, but are controlled primarily by federal law.
Section 626 is designed to protect the cable company's interest in
franchise renewal, but it does not establish a presumption of auto-
matic renewal in favor of the existing franchisee.20 Section 626 sets
standards a cable company must meet to obtain a renewal. A
franchise denial must be predicated on evidence that the company
failed to satisfy one or more of these specified standards. Congress
assumed "that a cable operator whose past performance and proposal
for future performance meet the standards ... [will] be granted
renewal."21
Section 626 does not require that the formal renewal procedures
18. 47 U.S.C. § 521(5) (Supp. III 1985).
19. 47 U.S.C. § 546 (Supp. III 1985).
20. Earlier versions of the cable legislation were criticized for effectively creating such a
presumption. See Options for Cable Legislation:. Hearings on H.R. 4103 and 4229 Before the.
Subcomm.. on Telecommunications, Consumer. Protection, and Finance of the House Comm.
on Energy and Commerce 98th Cong., 1st Sess. (1983) (statement by United States Conference
of Mayors). _ -:. ,
21. H.R. REP. No. 934, 98th Cong., 2d Sess. 72, reprinted in 1984 U.S. CODE CONG. &
.ADMIN. NEWS 4709.
1
614 Stetson Law Review [Vol. XVII
be used in every case.22 Thus, as a practical matter, the procedures in
section 626 will usually befollowed only when a franchising autho ity.
is uncertain about whether to grant a renewal.", In situations'"
which the franchising authority andthe incumbent have had a satis-
factory experiencnde
e ur"the ez isting franchise; both parties' may pre-
fer to avoid invoking the"full requirements of section626, and the
adversarial environment they may generate. If, however, the cable
company or the franchising authority so chooses, section 626 provides
for a three -stage procedure that either party may set in motion
within the first six months of the last three years of the franchise."
22. The legislative history of § 626 is clear on this point:
The provisions contained in this section are not mandatory. A cable operator and a
franchising authority may negotiate the renewal of a franchise independent of this
section. Also, independent of this section they may reach agreement on a franchise
renewal at any time during the franchise, including at any time after the procedures
under this section have been initiated.
Id. This concept is embodied in subsection § 626(h), 47 U.S.C. § 546(h) (Supp. III 1985), which
requires only that the public be afforded "adequate notice and opportunity for comment" con-
cerning renewals that are not tested by the formal procedures available under the other provi-
sions of that section.
23. Indeed, no formal renewal procedure appears to have been conducted through the
state of a final determination since the Cable Act has been in effect.
24. 47 U.S.C. § 546(a) (Supp. III 1985). In Florida, the Federal Cable Act procedures will
have to be reconciled with the requirements of recent state legislation that became effective on
October 1, 1987. See 1987 Fla. Sess. Law Serv. 62 (West). These provisions appear to subject
franchise renewals and new franchises to the same procedures, inasmuch as the term
"franchise" is expressly defined as "an initial authorization or renewal thereof issued by a
franchising authority, whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or
operation of a cable system." Id. at § 1(1)(c) (emphasis added). The state provisions further
provide:
No municipality or county shall grant a franchise for cable service to a cable system
within its jurisdiction without first, at a duly noticed public hearing, having
considered:
(a) The economic impact upon private property within the franchise area;
(b) The public need for such franchise, if any;
(c) the capacity of public rights-of-way to accommodate the cable system;
(d) The present and future use of the public rights-of-way to be used by the cable
system;
(e) the potential disruption to existing users of the public rights-of-way to be used by
the cable system and the resultant inconvenience which may occur to the public;
(f) The financial ability of the franchise applicant to perform;
(g) Other societal interests as are generally considered in cable television franchising;
(h) Such other additional matters, both procedural and substantive, as the municipal-
ity or county may, in its sole discretion, determine to be relevant.
1987 Fla. Sess. Law Serv. 62 § 1(2) (West). 4
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1988] Regulating Cable Television 615
-A. First Stage — Assessing Community 'Needs and Cable
Company Past Performance
The first stage of a formal renewal process under section 626 in
volves public proceedings during which future cable -related commu-
nity needs and interests are identified and the cable company's past
performance is reviewed. If requested by the cable company, a
franchising authority must "commence proceedings which afford the
public in the franchise area appropriate notice and participation"26 in
such proceedings. The company must make this request during a six-
month period that begins thirty-six months before the expiration of
the franchise.26 The franchising authority also has the option of initi-
ating these proceedings during this period.27
The public proceedings are designed to serve two purposes: to
identify future cable -related community -needs and interests, and to
review the cable company's past performance." The proceedings
should provide a forum for the community, the cable company, and
the municipality to explore changes in community needs since the
original franchise was granted and the ways in which the cable sys-
tem may be upgraded to meet those needs: The information gathered
during the public hearings and comment period, if any, will serve as a
basis for laterr decisions, including the nature and scope of the re-
quest for a renewal proposal and the determination whether or not to
renew the franchise.
B. Second Stage — Consideration of Proposals
After the public proceedings,2° the cable company, either on its
own or at the request of the franchising authority, may submit a re-
newal proposal.S° The Act allows a franchising authority to establish
minimum requirements for the proposal,31 which may include mat -
25. 47 U.S.C. § 546(c) (Supp. III 1985).
26. Id.
27. If neither the franchising authority nor the cable company invokes § 626 during this
time frame, these provisions are theoretically wiped out; the renewal process may then be car-
ried out through informal negotiations or other procedures established in the franchise itself, or
under local law, since, presumably, the standards for denial of a renewal would not then be
limited by § 626. _
28. 47 U.S.C. § 546(a) (Supp. III 1985). -
29. There is no express statutory time limit for concluding this first stage of the renewal
process.
30. 47 U.S.C. § 546(b)(1) (Supp. III 1985).
31. 47 U.S.C. § 546(b)(2) (Supp. III 1985).
616 Stetson Law Review [Vol. XVII
ters such as system upgrading;32 public, educational, and governmen-
tal (PEG) access,S3 customer service requirements,34, and franchise
fees.36
The franchising authority must decide whether to renew or deny
renewal of the franchise within four months after receiving the fran-
chisee's
renewal proposal.96 If the franchising authority decides to ac-
cept the incumbent's proposal, the section 626 proceedings are at an
end.37 If, however, the franchising authority decides on a preliminary
basis against renewal, the cable company may request that the pro-
cess move into the third and final stage, which involves an adminis-
trative hearing.SB
C. Third Stage Administrative Hearing
Section 626 specifies the issues that may be considered in the
administrative hearing that follows a preliminary decision against
renewal:
[T]he franchising authority ... shall ... commence an administra-
tive proceeding ... to consider whether —
(A) the cable operator has substantially complied with the material
terms of the existing franchise and with applicable law;
(B) the quality of the operator's service, including signal quality, re-
sponse to consumer complaints, and billing practices, but without
regard to the mix, quality, or level of cable services or other services
provided over the system, has been reasonable in light of community
needs;
(C) the operator has the financial, legal, and technical ability to pro-
vide the services, facilities, and equipment as set forth in the opera-
tor's proposal; and
(D) the operator's proposal is reasonable to meet the future cable -
related community needs and interests, taking into account the cost
of meeting such needs and interests.99
32. Id.
33. 47 U.S.C. § 531(b) (Supp. III 1985).
34. 47 U.S.C. § 552(a) (Supp. III 1985).
35. 47 U.S.C. § 542(a) & (b) (Supp. III 1985).
36. 47 U.S.C. § 546(c)(1) (Supp. III 1985).
37. See H.R. REP. No. 934, 98th Cong., 2d Sess. 73, reprinted in 1984 U.S. CODE•CONG. &
ADMIN. NEWS 4710.
38. 47 "U.S.C. § 546(c)(1) (Supp. III 1985). If the cable company requests an administra-
tive hearing, the franchising authority must provide one. The franchising authority may also
initiate an administrative hearing on its own. Id.
39. Id.; see also 47 U.S.C. § 546(d) (Supp. III 1985).
V
•jva
41,
1988]
Only t
in the
renew
writtei
one or
exist n]
the ops
Minor
satisfy
626. VG
tant pr
service;
is not
laws, a
local, s"
Th
lows the
perforn
cions of
Sec
franchiF.
plicatioj
of the f
unless t
the oppi
franchis
acquiesc
service,
breach.*
40. 47
of the four
specific fact
to • deny ren
41. H.
ADMIN. NEM
42. 47
43. Id.
44. Id.
authority of
should be iI
time to docu
ol. XVII
ernmen-
ranchise
or deny
he fran-
es to ac-
e at an
liminary
the pro-
: dminis-
•
in the
against
stra-
erial
re-
hout
ices
nity
•
pro-
era-
ble-
cost.
E CONG. &
dministra-
may also
n 3�
1988] Regulating Cable Television
Only these four factors, as set forth in the statute, may be 'considered
in the administrative proceeding, or serve as a basis for a denial of
renewal. The franchising authority cannot deny renewal unless a
written, adverse finding, supported by the record, has been made on
one or more of these factors."
The first factor = whether the cable company has complied with
existing franchise and legal requirements "does not require that
the operator meet each and every specific provision of a franchise."41
Minor or technical violations of the terms of the franchise will not
satisfy the substantial compliance standard established in section
626. What is necessary are repeated or flagrant violations of impor-
tant provisions, such as failure to provide the facilities, equipment or
services required by the franchise. Compliance with "applicable law"
is not limited by the Act or its legislative history to cable -related
laws, and the franchising authority may consider the full range of
local, state and federal laws to which the cable operator is subject.
The second factor concerns the quality of cable service. This al-
lows the municipality to consider aspects of the cable company's past
performance that are not necessarily governed by particular provi-
sions of the franchise.
Section 626 imposes some constraints which preclude the
franchising authority from exercising unfettered discretion in the ap-
plication of these first two criteria. Failure to comply with the terms
of the franchise will not constitute adequate reason to deny renewal
unless the operator has been given both notice of the deficiency and
the opportunity to cure it." In addition, if "it is documented that the
franchising authority has waived its right to object or has effectively
acquiesced"43 in a breach of the franchise, or in inadequate quality of
service, the franchising authority cannot deny renewal based on that
breach.**
40. 47 U.S.C. § 546(d) (Supp. III 1985). The Act does not assign more weight to any one
of the four factors than to the others. While a franchising authority's discretion is limited as to
specific factors, an adverse finding on any one of the factors will presumably support a decision
to deny renewal. •
41. H.R. REP. No. 934, 98th Cong., 2d Sess. 74, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4711.
42. 47 U.S.C. § 546(d) (Supp. III 1985).
43. Id. ,
44. Id. These limitations suggest the importance of periodic evaluations by a franchising
authority of cable company performance throughout the . term .'of a franchise, The _Company
should be informed of the evaluation results, and the franchising authority should .take the
time to document fully all instances of defective pezformance and to request compliance by the
618 Stetson Law Review
[Vol. XVII
Third, the franchising authority may consider the incumbent
cable company's financial, legal, and technical qualifications to pro-
vide the services set forth in its renewal proposal. Inadequate financ-
ing or the lack of technical expertise would presumably justify a de-
nial of renewal under this third factor.
The fourth and final factor concerns the cable company's ability
to satisfy reasonably the identified community needs and interests.
Again, the municipality's discretion in this area is limited by the rea-
sonableness standard set out in section 626 of the Act. In addition,
the franchising authority is expressly required to take into account
the company's costs in making a determination of whether the propo-
sal is reasonable.46
In addition to establishing substantive standards, section 626
also contains procedural safeguards for the protection of the parties
in the administrative proceedings. The franchising authority must
provide the cable company and the public with prompt and adequate
notice of the proceeding.46 The proceeding must be conducted in a
manner which "affords the cable operator and the franchise authority
due process protection."47 Further, the cable company and the
franchising authority are entitled to full participation in the proceed-
ing, a concept which includes the right to introduce, and require the
production of, relevant evidence, and the right to question wit-
nesses.48 The franchising authority is required to make a transcript of
the proceeding.
When the administrative proceeding has been completed, the
franchising authority must review the record of the proceeding and
make a decision to grant or deny renewal. This final decision must be
written and based solely on the record of the administrative proceed-
ing. The franchising authority is also required to state the reasons for
its decision, which, as noted above, must be based on one or more of
the four specified factors established in section 626(c)(1).
operator. In this manner, the franchising
base a denial of renewal, fully supported
cure its defective performance.
45. 47 U.S.C. § 546(c)(1)(D) (Supp.
46. 47 U.S.C. § 546(c)(1), (2) (Supp
47. H.R. REP. No. 934, 98th Cong.,
ADMIN. NEWS 4710.
48. 47 U.S.C. § 546(c)(2) (Supp. III
authority will have established a record on which to
by relevant evidence if the cable company does not
III 1985). _
. III 1985).
2d Sess. 73, reprinted in 1984 U.S. CODE CONG. &
1985).
1988]
A
judici
cedur
to ass
quirei
sess a
regarc
bly is
wheth
The si
likely
C•
take d
states
of the
renewi
other
the bu
franch
of the
W
49.
review uI
opportun
N.Y. EXE
50.
ity's deter
or state c
merit of a
51.
(D.C. Cir.
5 K. DAVI
52. ,
CONG. RE,
ultimately
53.
54
Federal M
373 U.S.
(1930); 5
55.
75, reprin,
[Vol. XVII
e incumbent
:tions to pro- _
quate financ-
justify a de- '
• any's ability
d interests.
d by the rea-
In addition,
into account
er the propo-
section 626
f the parties
hority must
d adequate
ducted in a
ise authority
y and the
the proceed -
require the
uestion wit -
transcript of
pleted, the
ceeding and
ion must be
ive proceed -
reasons for
- or more of
ord on which to
parry does not
CODE CONG. &
t
1988] Regulating Cable Television
D. Judicial Review
A cable company that is denied a franchise renewal may seek
judicial review of a final deterniination48 on either substantive or 'pro=
cedural grounds.60 The courts may apply a relatively_ strict standard
to assess a franchising authority's compliance with the procedural re-
quirements of section 626, since courts tend to assume that they pos-
sess an equal, if not greater expertise concerning such matters. With
regard to substantive issues, however, a franchising authority argua-
bly is more qualified to evaluate the factors and to determine
whether renewal will serve the needs and interest 'of its community.51
The standard of review employed on substantive matters is therefore
likely to be more limited.
Congress rejected the idea that reviewing courts should under-
take de novo review of a franchising authority's decision.62 The Act
states that a court should review the authority's findings on the basis
of the administrative proceeding conducted in the third stage of the
renewal process,53 presumably precluding the consideration of any
other evidence by the court.64 Thus, the cable company should bear
the burden of demonstrating that the adverse findings underlying the
franchise authority's decision are not supported by a preponderance
of the evidence as established in the administrative proceeding.55
While a court will presumably give deference to the franchising
49. The franchising authority's decision is not considered final for purposes of judicial
review until all of the state's administrative review procedures have been exhausted, or the
opportunity for such review has lapsed. See 47 U.S.C. § 546(f) (Supp. III 1985); see also, e.g.,
N.Y. EXEC. LAW § 821 (McKinney 1982).
50. 47 U.S.C. § 546(e) (Supp. III 1985). An action seeking review of a franchising author-
ity's determination to deny renewal after a § 626 proceeding may be brought in either federal
or state court. 47 U.S.C. § 555 (Supp. III 1985). No reported indication exists of the commence-
ment of any such action.
51. Compare Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1048-49
(D.C. Cir. 1979) with Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1026 (D.C. Cir. 1978). See also
5 K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 29:3, :17 (1984).
52. An earlier version of the Act did provide for de novo review of renewal denials, 129
CONG. REC. S8246 (daily ed. June 13, 1983), but this provision was eliminated in the Act as
ultimately passed.
53. 47 U.S.C. § ,546(e)(2)(B) (Supp. III 1985). , ,
• 54. This conclusion is supported by judicial decisions in other areas. See, e.g., Consolo v.'
Federal Maritime Comm'n, 383 US:607, 619.n:17 (1966); United States v., Carlo Bianchi &
373 U.S. 709,: 714-15 (1963), Tagg Bros. & Moorhead v.'United States, 280 U.S. 420,'443-44
(1930); 5 K DAVIS, ADMINISTRATIVE LAW TREATISE § 291., (1984). ; ,
55. See 47 U.S.C. § 546(e)(2)(B) (Supp. III 1985); HR REP. No. 934, 98th Cong, 2d Sess.
75, reprinted in 1984 US. CODE CONG. & ADMIN. NEWS 4712.
•
1
620 Stetson Law Review [Vol. XVII
authority's findings of fact,68 several of the renewal standards consid-
ered in the administrative proceeding involve mixed questions of law
and fact. Courts are divided on the standard of review applicable to
this type of determination,a7 but if the cable standard,
company meets its bur=
den; the court may giant "appropriate relief '68 including: a grant of
renewal.69.
In many jurisdictions, the legislative bodies that normally func-
tion as franchising authorities will be unaccustomed to conducting
their affairs in a way similar to the kind of formal administrative
hearings contemplated by section . 626. As increasing numbers of
franchises come up for renewal in coming years, the legal officers of
local governments may find that they must make special efforts to
ensure that their governments establish a proper record to justify
their actions, and that the written decision will be adequate to with-
stand judicial review.
III. SUBSTANTIVE REQUIREMENTS IN CABLE
FRANCHISES
Assuming that a city successfully navigates the procedural maze
presented by section 626, a further question presented by the Cable
Act is whether the Act preserves for cities the ability to insist upon
franchise provisions in a renewed franchise, or in a new franchise,
which will reflect the requirements of the local government and the
needs and interests of its citizens. In this connection, it is important
to examine other key provisions of the Cable Act which delineate the
kinds of provisions that may or may not be included in cable
franchises, including renewals of old franchises.
The Cable Act "grandfathered" many provisions in existing
56. See, e.g., NLRB v. Marcus Trucking Co., 286 F.2d 583, 589-92 (2d Cir. 1961).
57. Compare Baker v. Metcalfe, 633 F.2d 1198, 1201 (5th Cir.) (mixed questions of law
and fact not protected by clearly erroneous rule), cert. denied, 451 U.S. 974 (1981); and Ed-
wards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 485 (2d Cir. 1979) (appellate
court not bound by lower court's findings on mixed question of law and fact), cert. denied, 444
U.S. 1045 (1980), with Arrington v. Merrill Lynch, Pierce, Fenner & Smith Inc., 651 F.2d 615,
619 (9th Cir. 1981) (questions of materiality, scienter and reliance mixed questions of law and
fact but are particularly suitable to assessment by court and therefore reviewed under clearly
erroneous standard); and Manning v. Trustees of Tufts College, 613 F.2d 1200, 1203 (1st -Cir.
1980) (issue of whether party is a victim of sex discrimination mixed question of law and fact,
subject to clearly erroneous standard of review)..
58. 47 U.S.C. § 546(e)(2) (Supp. III 1985).
59. H.R REP. No. 934, 98th Cong., 2d Sess. 75,"reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4712. -
1
1988].
franchises fc
time of the
including re
specific stats
plication, fri
or influence
areas. Specif
that, among
say in: (a) tl
of services ti
that will be
sions pertaii
enforced.
Section (
regulate cabl
tent with the
missible regu
section 624, 1
tions 611 (I
franchising al
vices),83 and
tection laws).
With resp
29, 1984, a fr.
or request for
cilities and ed
ment or oper,
authority mai
60. See, e.g.,
61. 47. U.S.C.
62. 47 U.S.C.
63. 47 U.S.C.
64. 47 U.S.C.
65. 47 U.S.C.
relating to facilities
franchising authorit
franchising authorit
they are consistent
printed in 1984 U.S
[Vol. XVII
dards consid-
estions of law
applicable to
eets its bur-
g a grant of
urgaoantof
ormally func-
o conducting
dministrative
numbers of
gal officers of
cial efforts to
ord to justify
uate to with -
111
•
cedural maze
by the Cable
to insist upon
ew franchise,
ment and the
t is important
delineate the
ded in cable
s in existing '
d Cir. 1961).
d questions of law
74 (1981); and Ed-
ir. 1979) (appellate
t), cert. denied, 444
Inc., 651 F.2d 615,
uestions of law and
"ewed under clearly
1200, 1203 (1st Cir.
ion of law and fact,
.S. CODE CONG. &
1988]
Regulating Cable Television
franchises for the duration of the franchise term as in effect at the
time of the Act's enactment." Post -Cable Act franchises, however,
including renewals of existing franchises, are subject to a variety of
specific statutory limitations. Nonetheless, either expressly or by im-
plication, franchising authorities retain substantial powers to control
or influence important aspects of the cable systems that serve their
areas. Specifically, as summarized below, the Cable Act contemplates
• that, among other things, local governments will retain an important
say in: (a) the design and capabilities of a cable system; (b) the kinds
of services that will be made available on the . system; (c) the rates
that will be charged for those services; and (d) how franchise provi-
sions pertaining to these and other areas can be monitored and
enforced.
A. Regulation of System Characteristics
Section 624 of the Cable Act81 permits franchising authorities to
regulate cable system facilities and equipment to the extent consis-
tent with the provisions of the Act. Consequently, the scope of per-
missible regulation of facilities and equipment is defined not only by
section 624, but also by other provisions of the Act, including sec-
tions 611 (PEG services and channel capacity),82 621 (general
franchising authority and federal and state regulation of cable ser-
vices),eS and 632 (customer service requirements and consumer pro-
tection laws)."
With respect to franchises and renewals granted after December
29, 1984, a franchising authority, in its request for proposals (RFP)
or request for a renewal proposal, may establish requirements for fa-
cilities and equipment as long as they are "related to the establish-
ment or operation of a cable system."86 For example, a franchising
authority may establish minimum channel capacity or addressability
60. See, e.g., 47 U.S.C. § 544(c) (Supp. III 1985).
61. 47 U.S.C. § 544 (Supp. III 1985).
62. 47 U.S.C. § 531 (Supp. III 1985).
63. 47 U.S.C. § 541 (Supp. III 1985).
64. 47 U.S.C. § 552 (Supp. III 1985).
.65. 47 U.S.C. § 544(b)(1) (Supp. III 1985). The FCC may establish "technical standards"
relating to facilities and equipment, including facilities and equipment that are required by a
franchising authority. 47 U.S.C. § 544(e)' (Supp. III 1884 The Act does not expressly prohibit a
franchising authority from establishing facilities and' equipment standards of its own, provided
they are consistent with the FCC's standards.. RR. REP. No. 934, 98th Cong., 2d Sess. . 70, re-
printed in 1984 U.S. CODE CONG. & ADMIN. NEWS 4707.
•
622 Stetson Law Review [Vol. XVII
requirements for the cable system in the RFP or request for renewal
proposals, including renewal proposals considered under section 626.
Examples of other requirements for facilities and equipment which
could be specified in an RFP include configuration. (the location` and
number of hubs and trunk lines), the number of cables (dual trunk),
and the number'. of networks (separate subscriber Wand institutional
networks). I/ addition, the franchising authority should be entitled
to specify PEG access -related requirements for facilities and equip-
ment, such as studios, cameras, vans, and computers, under this
provision.
A franchising authority is also specifically authorized to enforce
requirements for facilities and equipment established in accordance
with section 624 to the extent related to the establishment or opera-
tion of a cable system.88 Thus, a franchising authority may establish
requirements for facilities and equipment on the basis of the require-
ments included in the RFP, as well as on the basis of any offer for
new or additional facilities and equipment made by the operator in
its proposal or developed through the negotiation process.
The legislative history of the Cable Act indicates that the term
"requirements for facilities and equipment" is to be construed
broadly:
Facility and equipment requirements may include requirements
which relate to channel capacity; system configuration and capacity,
including institutional and subscriber networks; headends and hubs;
two-way capability; addressability; trunk and feeder cable; and any
other facility or equipment requirement, which is related to the es-
tablishment and operation of a cable system, including microwave
facilities, antennae, satellite earth stations, uplinks, studios and pro-
duction facilities, vans and cameras for PEG use.87
Moreover, while this list is illustrative of facilities and equipment
provisions, it is not exhaustive.88
The broad powers conferred on franchising authorities by section
624, on its face, are subject to two principal limitations. First, under
66. 47 U.S.C. § 544(b)(2)(A) (Supp. III 1985).
67. H.R. REP. No. 934, 98th Cong., 2d Sess. 68, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4705.
68. The House Report specifically stated that "[f]acility and equipment requirements
may include" the items mentioned above. Id. (emphasis added). It did not indicate that facili-
ties and equipment provisions are limited to those mentioned. Accordingly, there should be
many franchise provisions in addition to those expressly listed in the House Report which fall
within the scope of the term "facilities and equipment."
1988]
the auth(
pre -Cable
preempt
than the
Court of
York ,v. F
the types
The cour
other cats
franchisir
for all ki/
air broad
authoritie
await revi
Seco/
equipmen
be subject
ceedings.7
broad pov
cilities an
ity those
626.
A key
sal is rea.
and inter(
interests.'
of section
and equip
the appari
With
between R
69. 47 1
70. Rep(
71. 814
72. The
appeals decisi
73. Oral
74. 47 U
75. 47 U
[Vol. XVII
for renewal
ection 626.
ent which
• cation and
ual trunk),
• stitutional
be entitled
and equip -
under this
to enforce
accordance
t or opera -
y establish
he require -
y offer for
operator in
t the term
construed
rements
apacity,
d hubs;
and any
the es-
crowave
d pro -
equipment
by section
irst, under
CODE CONG. &
requirements
'te'that facili--
,ereshould be
port which fall
1988] Regulating _Cable Television 623
the authority of subsection 624(e),89 the FCC decided to retain its
pre -Cable Act signal quality standards as "firm .guidelines" . and to
preempt any local technical regulations which are more stringent
than the federal standards." On March 20, 1987, the United States
Court of Appeals for the District of Columbia Circuit in City of New
York v. FCC71 affirmed the FCC's preemption,insofar as it applied to
the types of signals for which the FCC in fact has such guidelines.
The court reversed the Commission's order insofaras it applied to
other categories of signals. Hence, for the moment, it appears that
franchising authorities retain the ability to set technical standards
for all kinds of cable signals except the retransmissions of over -the -
air broadcast television signals.72 Resolution of whether franchising
authorities may establish standards for this category of signals must
await review by the Supreme Court 73
Second, the establishment of requirements for facilities and
equipment •in an incumbent's renewal proposal under section 624 will
be subject to the provisions of section 626 in contested renewal pro-
ceedings.74 Thus, while a franchising authority appears to have very
broad power under section 624(b)(1) to establish requirements for fa-
cilities and equipment in a request for a renewal proposal, in actual-
ity those requirements are limited by the requirements of section
626.
A key factor under section 626 is whether "the operator's propo-
sal is reasonable to meet the future cable -related community needs
and interests, taking into account the cost of meeting such needs and
interests."76 A franchising authority may not avoid the requirements
of section 626 by establishing unreasonable requirements for facilities
and equipment in contravention of section 626(c)(1)(D) in reliance on
the apparent freedom to establish requirements under section 624(b).
B. Cable Services
With respect to cable services, ' section 624 draws a distinction
between what may be required in RFP, or in a city's request for re -
69. 47 U.S.C., § 544(e) (Supp. III 1985).
70. Report and Order in MM Docket No. 85-38, 50 Fed. Reg. 52,462 (1985).
71. 814 F.2d 720 (p.c. Cir.), cert. granted, 108 S. Ct. 448 (1987). .
72. The FCC has not yet initiated any proceedings on remand in response .to'the court of
appeals decision.
73. Oral Argument before the Supreme .Court took place on March 29, 1988. •
74. 47 U.S.C. § 544(b)(1) (Supp. III 1985).
75. 47 U.S.C. § 546(c)(1)(D) (Supp. III (1985) (emphasis added).
624 Stetson Law Review [Vol. XVII
newal proposals, and what may be included in a franchise agreement,
, ,
. .
by authorizing a franclusmg authority to enforce certain offers which
_•
are made by Operator in its proposal in addition to the minimum
permissible requirements of the RFP. While 'a franchising authority
. may unilaterally establish requirements for facilities- and equipment,
requirements for video programming and information services, on the
other hand, may be established in the franchise only as a result of.a
voluntary offer by the operator, which can then be embodied in the
franchise. Specifically, a franchising authority is expressly precluded
from establishing "requirements for video programming or other in-
formation services" in RFP or request for renewal proposals." Thus,
a franchising authority may not, as a condition of granting or re-
newing a franchise, require that the cable operator provide "particu-
lar video or other information services, or even a 'broad category of
video or other information service."77
• On the other hand, a franchising authority is authorized to en-
force franchise provisions pertaining to services, even though the pro-
visions in question could not be included in RFP. Specifically, a
franchising authority may enforce requirements included in the
franchise "for broad categories of video programming or other ser-
vices" provided that the service requirements are related to the es-
tablishment or operation of the cable system."
Thus, section 624 clearly prohibits a franchising authority from
using RFP's or requests for renewal proposals to condition the grant
or renewal of a franchise on the provision of particular video pro-
gramming services and other cable services. Nonetheless, the Act per-
mits franchising authorities to enforce franchise requirements which
relate to the provision of those video programming services which are
voluntarily agreed to by the operator during the franchise negotia-
tions and embodied in the franchise agreement. However, these ser-
vice requirements must be described as "broad categories of video
programming" in the franchise. Examples of appropriate categories
include: "children's programming; programming in a particular for-
eign language; programming which is [of] primary interest to a par-
ticular minority group; news and public affairs programming [and]
. -
76. 47 U.S.C. § 544(b)(1) (Supp. III 1985).
77. H.R. REP. No. 934, 98th Cong., 2d Sess. 68, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4705.
78. 47 U.S.C. § 544(b)(2)(B) (Supp. III 1985).
1988]
sports pro,
this nature
by a franc]
cable comp
The A
ing objecth
assuring th
ators prom:
thority's
gramming
that first a
limited.
With r(
tion 623 of
regulate rat
the FCC is
is not subje
tions, the F
ists where t
tally availat
over any pc
within the
serve the cal
" 79. H.R. RE
ADMIN. NEWS 47(
80. An imp
an enforceable br
agree upon. Subs
the District of Co
denied, 106 S. Ci
required local brc
stitutionaL In the
terim rules, whicl
F.C.C., 835 F.2d
cations, however,
tional, but. only ti
of cable operators
be imposed, cons:
express authority
81. 47 U.S.0
82. Report a
•
: 1
� F
V
[Vol. XVII
;e agreement,
offers which
;he minimum'
ing authority
d equipment,
rvices, on the
a result of a
oodied in . the
aly precluded
or other in-
losals 78 Thus,
anting or re -
ride "particu-
d category of
lorized to en-
ough the pro-
5pecifically, a
hided in the
or other ser -
ted to the es-
uthority from
tion the grant
Lar video pro-
;, the Act per-
ements which
ices which are
chise negotia-
ver, these ser-
ories of video
ate categories
particular for -
;rest to a par-.
a mmg [and]
J.S. CODE CONG. &
1988] Regulating Cable Television 625
sports programming."7e Broad categories of video programming of
this nature may be specified in a franchise agreement and enforced
by a franchising authority to the extent that they are based on the
cable company's original offer .or an offer made during negotiations 8°
The Act thus attempts to accommodate two somewhat conflict-
ing objectives: (1) the legitimate interest of franchising authorities in
assuring that subscribers receive the types of services that cable oper-
ators promise; and (2) a societal interest in limiting a franchising au-
thority's ability to require, as a condition of entry, which specific pro-
gramming services are provided to cable subscribers. This ensures
that first amendment principles of free speech are not improperly
limited.
C. Regulation of Rates
With respect to franchises granted after December 29, 1984, sec-
tion 623 of the Cable Act81 provides that a franchising authority may
regulate rates for "basic cable service" only in circumstances, which
the FCC is required to define by regulation, in which a cable system
is not subject to effective competition. In promulgating its regula-
tions, the FCC initially determined that "effective competition" ex-
ists where three or more over -the -air broadcast signals are theoreti-
cally available: that is, where they place a predicted Grade B contour
over any portion of the cable community, are significantly viewed
within the cable community, or are translator stations licensed to
serve the cable community.82 Under this standard very few communi-
79. H.R. REP. No. 934, 98th Cong., 2d Sess. 68-69, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEW'S 4705-06.
80. An important unresolved issue is whether local broadcast television signals constitute
an enforceable broad category of services that cable companies and franchising authorities may
agree upon. Subsequent to enactment of the Cable Act, the United States Court of Appeals for
the District of Columbia, in Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert.
denied, 106 S. Ct. 2889 (1986), held that the FCC's mandatory signal carriage rules, which had
required local broadcast stations to be carried on cable systems for some 20 years, were uncon-
stitutional. In the wake of the court's decision in Quincy, the FCC adopted less stringent, in-
terim rules, which the Court of Appeals subsequently struck down. Century Communications v.
F.C.C., 835 F.2d 292 (D.C. ,Cir. 1987). The court's decisions in Quincy and Century Communi-
cations, however, did not find mandatory signal carriage rules to be inherently unconstitu-
. 'tional, butonly that the record before the FCC, did not substantiate the perceived infringement
of cable operators' first amendment'rights.Thus it is possible that similar. requirements could
be imposed, consistent with the first amendment; by local franchising authorities 'under the
express authority of § 624.•
81. 47 U.S.C. § 543 (Supp. III 1985):
82. Report and Order in MM Docket No. 84-1296, 58 Rad. Reg. 2d (P&F) 1, 23 (released
626 Stetson Law Review [Vol. XVII
ties would lack "effective competition," and thus few communities
would continue to .have 'authority to regulate rates for cable service.
In addition;.. the_ FCC. initially defined "basic cable: 'service" as
"the tier of service regularly provided to all subscribers that includes
the public, educational and governmental channels, if required by a
franchising authority under [the Cable Act], and the retransmissions
of any broadcast television signals in [certain defined categories of
local broadcast television stations]."83 Consequently, under the FCC's
rules, even those few communities that may continue to regulate
rates could generally do so only with respect to the lowest single tier
of service.
The FCC also provided a one-year exemption from rate regula-
tion to cable operators initially found to be subject to effective com-
petition, but later determined not to be due to changed circum-
stances in the cable system's community." Finally, the FCC's
regulations, as adopted by the agency, would have allowed cable sys-
tems to pass through to subscribers any readily identifiable increase
in cost that is entirely attributable to the provision of basic service.
These rate increases could have been applied automatically without
franchising authority approval, and could have been taken in addi-
tion to the five percent automatic annual increase to which most sys-
tems are entitled under the Cable Act."
On January 17, 1987, however, in ACLU. v. FCC86 the United
States Court of Appeals for the District of Columbia Circuit reversed
and remanded substantial portions of the Commission's rate regula-
tion rules. The court concluded that three significant aspects of the
FCC's rate regulation rules were invalid: (1) the FCC's use of a defi-
nition of "basic cable service" which differed from that set forth in
the Cable Act; (2) the creation of the automatic "pass-through provi-
sion" permitting cable operators to pass on to consumers any "read-
ily identifiable" increase in costs attributable to providing basic ser-
vice; and (3) the Commission's formulation, in defining effective
competition, of a signal availability standard that failed to ensure
that three broadcast television signals would theoretically be availa-
Apr. 19, 1985).
•, 83. Memorandum Opinion and Order, in MM Docket No. 84-1296, 60 Rad. Reg. 2d (P&F)
, 514 (released June 5, 1986).q 6:
84. Report and Order in- MM Docket No. 84-1296, 58 Rad. Reg. (P&F) 2d 1, 29 (released
Apr. ,19, 1985).
• 85. Id., at 35.
• 86. 823 F.2d 1554 (D.C. Cir. 1987). •
•
1988]
ble over at
The opinio:
continuous]
make adjus
The FC
in response
tell the extf
effective co
that at leas
not to have
rates under
At leas.
ing authori.
not been cl
franchising
franchise ti
franchise r(
caused by t
pressly. Thc
bility for pi
for prospeci
has been in
Act in the I
Cable f
not necessal
section 626.
to have satil
then permit
ture? Or, co
cal to those
The Ca'
87. Further
(released Sept. 2
88. See Tri
89. These
[Vol. XVII
ommunities
ble service.
service" as
at includes
• uired by a
smissions
tegories of
r the FCC's
to regulate
t single tier
ate regula-
ective corn-
ed circum -
the FCC's
• cable sys-
•le increase
:sic service.
lly without
en in addi-
h most sys-
the United
it reversed
ate regula-
• ects of the
e of a defi-
.et forth in
ough provi-
any "read -
g basic ser -
g effective
• to ensure
be avails-
. Reg. 2d (P&F)
1, 29 (released
4
1988] Regulating Cable Television
627
ble over at least some significant portion of the cable community.
The opinion also makes clear that the FCC has a responsibility to
continuously monitor the effects of its rate regulation rules, and to
make adjustments when circumstances so require.
The FCC has issued comments on how its rules should be revised
in response to the court's order.B7 Hence, although it is too early to
tell the extent to which the Commission will reshape its definition of
effective competition in response to the court's opinion, it is likely
that at least some larger number of jurisdictions will be determined
not to have effective competition and, therefore, be able to regulate
rates under the Commission's order.
D. Enforcement of Franchise Provisions
At least two important issues that affect the ability of franchis-
ing authorities to enforce substantive franchise requirements have
not been clearly resolved. The first issue concerns the ability of a
franchising authority under the Cable Act to insist upon reasonable
franchise terms on points that are not directly covered by the
franchise renewal criteria in the Act. This uncertainty has been
caused by the failure of the Cable Act to address this question ex-
pressly. The second issue is whether cable companies may avoid lia-
bility for past breaches of their franchises simply by filing requests
for prospective modifications. Uncertainty with regard to this issue
has been introduced by an interpretation of section 625 of the Cable
Act in the Fourth Circuit.e8
1. Franchise Terms
Cable franchises typically address numerous matters89 that are
not necessarily directly related to the criteria for renewal set forth in
section 626. Assuming that the incumbent cable system is determined
to have satisfied the section 626 criteria, is the franchising authority
then permitted to .insist upon reasonable franchise terms of this na-
ture? Or, conversely, must the franchise be renewed on terms identi-
cal to those upon which it was originally granted?
The Cable Act does not directly address these questions. How -
87. Further Notice of Proposed Rule Making in MM Docket No. 84-1296, FCC 87-307
(released Sept. 28, 1987).
88. See Tribune -United Cable v. Montgomery County, 784 F.2d 1277 (4th Cir. 1986).
89. These matters include bonding, construction, and reporting requirements.
628 Stetson Law Review
[Vol. XVII
ever, based upon the structure of the Act and general contract law
provisions, franchising' authorities should have strong arguments that
they are not limited: to the sometimes -antiquated versions of such
terms as they may appear in the original franchise:'`
Congress intended, in the Cable Act, to "preserve the critical role
of municipal governments in the franchising process."90 Moreover,
while section 621 provides that any franchise awarded by a munici-
pality "shall be construed to authorize the construction of a cable
system over public rights-of-way, and through easements,"91 the
cable company must also ensure that the safety and convenience of
property owners and other persons will not be adversely affected by
this construction.92 This provision evidences on its face a certain
amount of respect for the traditional local regulation of public health
and safety, a conclusion which is supported by the general purposes
of the Act set out in section 601.
Section 601 sets forth six general purposes, three .of which are
relevant to this issue. First, the Cable Act is intended to "establish
franchise procedures and standards which encourage the growth and
development of cable systems and which assure that cable systems
are responsive to the needs and interests of the local community.""
In other words, the Cable Act reflects an effort to balance the inter-
ests of both a cable company and a community in establishing
franchising standards that will serve their interests.
Section 601 further provides that the Act is intended to "estab-
lish guidelines for the exercise of Federal, State, and local authority
with respect to the regulation of cable systems."94 Again, this provi-
sion evidences an attempt at balance; cable regulation is not intended
to become an exclusively federal domain, but instead a common ef-
fort among all levels of government to encourage the development of
responsible, economically viable cable systems to serve local commu-
nities. Finally, section 601(5) demonstrates that the Cable Act is in-
tended to establish "an orderly process of franchise renewal which
protects cable operators against unfair denials of renewal."95
Taken together, the language of sections 601 and 621 confirms
90. H.R. REP. No. 934, 98th Cong., 2d Sess. 19, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4645. •
91. 47 U.S.C. § 541(a)(2) (Supp. III 1985).
92. 47 U.S.C. § 541(a)(2)(A) (Supp. III 1985).
93. 47 U.S.C. § 521(2) (Supp. III 1985).
94. 47 U.S.C. § 521(3) (Supp. III 1985).
95. 47 U.S.C. § 521(5) (Supp. III 1985) (emphasis added).
1988]
that Congre:
the franchisi
varices the ":
lirectly relal
Fair," a mun:
elusion in a
would provi(
to require re
A franc]
successful h(
fers on the
viewed as th
a statutorily
future.
In the o
ment of this
both the do(
order to asce
broad term,
under the a
such as usag
spondence b
the case aro;
What a
decision whi
may also im
and good fai
96. An exal
understanding.
97. See Toi
son & Son, Inc.
98. Bitner
Son, Inc., v. Coh
99. Saul Be
100. United
A. CORBIN, COMM
101. Town o
102. Id.
103. Purvis
104. See Ad
Teachers Ins. &
1986); Saul Bass
§ 570 (Kaufman
Vol. XVII
1tract law
nents that
:ls of such
ritical role
Moreover,
a munici-
of a cable
its,"91 the
enience of
Effected by
a certain
blic health
1 purposes
which are
"establish
rowth and
le systems
munity."93
the inter-
;tablishing
to "estab-
authority
this provi-
t intended
►mmon ef-
opment of
commu-
Act is in-
wal which
»95
1 confirms
:ODE CONG. &
,;a
f
1988] Regulating Cable Television 629
that Congress envisioned a continuing role for local government in
the franchising process. To the extent that a franchise provision ad-
vances the "needs and interests of the local community" (even if not
directly related to the renewal criteria in section 626) and is not "un-
fair," a municipality should have a valid basis for insisting on its in-
clusion in a renewal of a 'franchise. Likewise, general contract law
would provide support for the authority of franchising jurisdictions
to require reasonable "business" terms.
A franchise renewal is, in essence, a contract renegotiation. A
successful hearing under section 626 of the Cable Act, in effect, con-
fers on the cable company an expectation of renewal which may be
viewed as the addition of an implied term in the original franchise of
a statutorily enforceable "agreement to agree" on renewal in the
future.
In the ordinary commercial context, when a party seeks enforce-
ment of this sort of precontractual agreement98 a court will look to
both the document itself as well as the circumstances of the case in
order to ascertain the terms of the agreement.97 "Circumstances" is a
broad term, and includes elements such as the course of performance
under the agreement,99 previous negotiations,99 common practices;
such as usage and custom in the industry,10O any subsequent corre-
spondence between the parties,101 and the general context in which
the case arose.'"
What a court will seek to do in this type of situation is to reach a
decision which is "fair in the circumstances.710S In addition, a court
may also imply a general obligation on both parties of fair dealing
and good faith negotiation.104 Hence, while the matter is not entirely
96. An example of such an agreement would include a letter of intent or memorandum of
understanding.
97. See Town of North Bonneville v. United States, 5 CL Ct. 312, 322-23 (1984); Gunder-
son & Son, Inc. v. Cohn, 596 F. Supp. 379, 382-83 (D. Mass. 1984).
98. Bitner v. Borne Chemical Co., 16 Bankr. 514, 521 (Bankr. D.N.J. 1981); Gunderson &
Son, Inc., v. Cohn, 596 F. Supp. 379, 382-83 (D, Mass. 1984).
99. Saul Bass & Assocs. v. United States, 505 F.2d 1386, 1395 (Ct. Cl. 1974).
100. United States v. Orr Const. Co., 560 F.2d 765, 769 (7th Cir. 1977) (quoting 1
A. CORBIN, CORBIN ON CoNTRAcrs § 95 at 402 (1963)). -
101. Town of North Bonneville v. United States, 5 CL Ct. 312, 322 (1984).
102. Id. • +.•
103. Purvis v. United States, 344 F.2d 867, 870 (9th_ Cir. 1965).
104. See Admiral Plastics Corp. v. Trueblood, Inc., 436 F.2d 1335, 1338 (6th Cir. 1971);
Teachers Ins. & Annuity Ass'n of America v. Butler, 626 F. Supp. 1229, 1231-32 (S.D.N.Y.
1986); Saul Bass & Assocs., 505 F.2d at 1396; see generally 2 A. CORBIN, CORBIN ON CONTRACTS
§ 570 (Kaufman Supp. 1984).
6�
11
';]
630 Stetson Law Review [Vol. XVII
M1
free from doubt, franchising authorities should be able to continue, in
connection with renewals under the Cable Act, to require enforceable
franchise provisions that do not exist in the original franchise and
Which do not necessarily relate directly to any of the renewal criteria
under section 626.
2. Modification Procedures
Section 625 of the Cable Act permits cable companies to seek
modifications of two categories of franchise requirements: those relat-
ing to "facilities and equipment," and those relating to services. Dif-
ferent standards apply to the modification of each category.
First, for both new and existing franchises, section 625(a)(1)(A)
provides that a cable operator may obtain modifications with respect
to franchise requirements for facilities and equipment, including
PEG access, if the operator can demonstrate that: (1) it is "commer-
cially impracticable" to comply with the requirements for facilities or
equipment; and (2) its proposal for modification is appropriate in
light of the commercial impracticability of the facility or equipment
requirement.106 Second, section 625(a)(1)(B) provides that a cable op-
erator may obtain modifications of the services required by a
franchise by demonstrating that the "mix, quality, and level of ser-
vices" required by the franchise at the time it was granted will be
maintained after implementation of the proposed modification.106
In a potentially very significant decision, Tribune -United Cable
of Montgomery County v. Montgomery County,107 a federal circuit
court enjoined a franchising authority from enforcing the penalty
provisions in its cable franchise agreement, pending resolution of the
company's request for modification of the agreement under section
625. This ruling, although not controlling in most parts of the coun-
try, sets a precedent which would allow cable companies to stay lia-
bility for past breaches of their franchises simply by filing a section
625 request for a prospective modification. It is unlikely that Con-
gress anticipated such a broad interpretation of section 625. More-
over, this decision may seriously and adversely affect the ability of
franchising authorities to enforce franchise obligations to which com-
panies agree, but which they later decide to ignore: -
Franchising authorities may want to take steps to minimize ad -
105. 47 U.S.C. § 545(a)(1)(A) (Supp. III 1985).
• 106. 47 U.S.C. § 545(a)(1)(B) (Supp. III 1985).
107. 784 F.2d 1227 (4th Cir. 1986).
E;
d'P
,y, 'hryS
1988]
verse elle
is appliec
sions of a
to financi
the status
the franc]
practicabi
a franchis
obtain the
ments of 1
if Montgc
franchisin;
the decisic
plated by
Congr
franchisin€
tence of sc
recent firs -
tion the e:
by the Cal
Ironici
expressly a
ment inter
systems, al
in this reg,
tinue to re:
of cable tel
ity that a
process. MOB
it opted wo
listeners to
108. See, e
1987); Pacific R
tury Fed., Inc. N
tions, Inc. v. Ci
grounds, 476 U.
Supp. 580 (W.r
109. H.R. A
ADMIN. NEWS 4e
[Vol. XVII
to continue, in
e enforceable
franchise and
enewal criteria
• anies to seek
ts: those relat-
• services. Dif-
egory.
n 625(a)(1)(A)
s with respect
ent, including
t is "commer-
or facilities or
ppropriate in
or equipment
at a cable op-
- quired by a
• level of ser -
anted will be
ification.10e
United Cable
ederal circuit
the penalty
olution of the
under section
of the coun-
es to stay Ha-
ling a section
ely that Con-
n 625. More -
the ability of
• which com-
minimize ad -
4)
1988] Regulating Cable Television
631
verse effects of the Montgomery County doctrine, in the event that it
is applied in their jurisdictions. First, to the extent that the provi-
sions of a franchise agreement allow the franchising authority access
to financial data, the franchising authority should keep current with
the status of the cable company's activities. This measure will assist
the franchising authority in refuting arguments of "commercial im-
practicability" under section 625. Second, whenever modifications to
a franchise agreement are agreed upon, it would appear desirable to
obtain the cable operator's express acknowledgment that the require-
ments of the franchise remain commercially practicable. Hence, even
if Montgomery County is followed in other circuits, counsel . for
franchising jurisdictions may be able to minimize the extent to which
the decision appears to eviscerate the enforcement authority contem-
plated by the Cable Act.
IV. CABLE AND THE FIRST AMENDMENT
Congress' attempt to establish firm guidelines for local cable
franchising and regulation has been frustrated not only by the exis-
tence of some ambiguities in the Cable Act itself, but by a series of
recent first amendment decisions. Some cases have called into ques-
tion the entire franchising and regulatory framework contemplated
by the Cable Act.'"
Ironically, in enacting comprehensive cable legislation, Congress
expressly attempted to resolve the sometimes conflicting first amend-
ment interests of cable system operators, of potential users of cable
systems, and of the public at large. Congress ultimately determined,
in this regard, to establish a regulatory framework that would con-
tinue to rely "on the local franchising process as the primary means
of cable television regulation, while defining and limiting the author-
ity that a franchising authority may exercise through the franchise
process."109 Congress intended that the regulatory pattern for which
it opted would secure "the First Amendment right of the viewers and
listeners to a diversity of information sources, in the manner least
108. See, e.g., Group W Cable, Inc. v. City of Santa Cruz; 669. F. Supp. 954 (N.D. Cal. •
1987); Pacific West Cable Co. v.. City of Sacramento, 672 F. Supp. "1322 (E.D. Cal. 1987); Cen-
tury Fed., Inc. v. City of Palo Alto, 648 F. Supp. 1465 (N.D. CaL 1986); Preferred Communica-
tions, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir. 1985), aff'd on other and narrower
grounds, 476 U.S. 488 (1986). But see Erie Telecommunications, 'Inc. v. City of Erie; 659 F.
Supp. 580 (W.D. Pa. 1987). •
109. H.R. REP. No. 934, 98th Cong., 2d Sess. 19, reprinted in 1984 U.S. CODE CONG. &
ADMIN. NEWS 4645.
el
632 Stetson Law Review [Vol. XVII
restrictive on the cable operators' First Amendment interests."110
Congress could have chosen a different model. In theory, cable
systemconstruction could'proceed in a given jurisdiction in either of
two ways: :
One approach would be -for the local `government to permit un-
restricted construction of duplicative cable systems on public rights-
of-way on a first-come, first-served basis — at least until the number
of such systems reaches the ' capacity of available poles and utility
conduits to accommodate them. A drawback to this approach is the
potential disruption that will result as cable systems are constructed
and then ripped out while the market sorts out the "winners" of the
resulting competition between or among systems. Another problem is
that no cable company may want to serve the area's less affluent por-
tions. A further risk is that, in such an environment, no cable com-
pany will choose to invest in a system possessing the quality of recep-
tion, the number of available channels, and the diversity of
programming alternatives that might otherwise be obtainable.
A second possible approach is for local governments to franchise
a limited number of companies to construct cable systems. Through
conditions in the franchise agreement, and by selecting among the
available applicants for the opportunity to use the public rights-of-
way, a local government could try to enhance the cable system's re-
sponsiveness to the needs of the community it serves. It could at-
tempt, for example, to minimize unnecessary disruptions of the pub-
lic facilities on which the system is placed; to require the
construction of a quality communications system; to ensure that
cable service would be available in all geographic locations within the
jurisdiction, regardless of area income levels; to encourage the availa-
bility of a wide diversity of types of programming; and to require
that some portion of the cable system's channel capacity remain
available for use by individuals or groups that are controlled by the
franchised cable operator.
Since the advent of the development of cable television, virtually
all local jurisdictions have chosen some variation of this latter ap-
proach. In 1984, Congress decided to endorse this approach while si-
multaneously creating new safeguards to make more certain that the
traditional franchising process would function in the public interest.
Nonetheless, subsequent to the enactment of the Cable Act, several
110. Id. at 36, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 4673.
47.
1988]
court deci
tionality,
activities.
A dei
scopeof t
ties are n
thermore,
franchisir
cision in (
suggestini
whether
draw unsi
can phys
situations
111. 106
or scope of tl
Ninth Circui
protection as
takes of some
prises of new
would seem 1
ers," Id. at 2
Moreove
permissible i
single course
etal interest.
sis added)).
Court may b
the broadcas
112. For
648 F. Supp.
pears to rest
the critical f
public street
physically ac
tive cable op
of the case t:
rights-of-way
cable system;
Co. v. FCC.
want to broa,
Amendment
publish.").
Indeed,
broadcast fn
cable system
physical scar
ct
[Vol. XVII
terests."110
theory, cable
on in either of
to permit un-
public
n-public rights -
til the number
les and utility
pproach is the
Lre constructed
inners" of the
her problem is
5s affluent por-
no cable com-
' ality of recep-
diversity of
ainable.
Lts to franchise
terns. Through
ing among the
,lblic rights -of -
le system's re-
s. It could at-
ans of the pub -
require the
ti ensure that
L
ons within the
Wage the availa-
nd to require
1pacity remain
'trolled by the
•
ision, virtually
this latter ap-
roach while si-
rtain that the
ublic intereit.
le Act, several
•
73.
3'.
1988] Regulating Cable Television
court decisions have invalidated or called into question the constitu-
tionality, under the first amendment, of traditional cable franchising
activities.
A detailed response to the rationale of those cases is beyond the
scope of this Article. Suffice it to note that the most adverse authori-
ties are not controlling outside of certain districts in California. Fur-
thermore, the decisions that have challenged the traditional cable
franchising process appear to have misread the Supreme Court'sde-
cision in City of Los Angeles v. Preferred Communications, Inc.'" by
suggesting that it makes no difference, under the first amendment,
whether cable systems make use of public property. These cases also
draw unsupportable conclusions from the fact that available facilities
can physically accommodate two or more cable systems in most
situations.112
111. 106 S. Ct. 2034 (1986). While the Supreme Court expressly did not define the nature
or scope of the cable industry's first amendment rights in Preferred, it did appear to reject the
Ninth Circuit's view that cable operators are entitled to precisely the same first amendment
protection as newspapers and book publishers. The Court noted that "[c]able television par-
takes of some of the aspects of speech and communication of ideas as do the traditional enter-
prises of newspaper and book publishers," but went on to say "[Preferred's] proposed activities
would seem to implicate First Amendment interests as do the activities of wireless broadcast-
ers," Id. at 2037 (emphasis added).
Moreover, the Supreme Court emphasized that " `[elven protected speech is not equally
permissible in all places and at all times' .... [W]here speech and conduct are joined in a
single course of action, the First Amendment values must be balanced against competing soci-
etal interests." Id. at 2037-38 (quoting Cornelius v. NAACP, 473 U.S. 788, 800 (1985) (empha-
sis added)). Thus, the language and tenor of the Supreme Court's opinion suggest that the
Court may be leaning toward applying to cable the first amendment standards associated with
the broadcast media, rather than that used for newspapers.
112. For example, the suggestion of the court in Century Federal, Inc. v. City of Palo Alto,
648 F. Supp. 1465 (N.D. Cal. 1986), that physical scarcity is irrelevant to cable television ap-
pears to rest on a fundamental misconception. 648 F. Supp. at 1471. That conclusion overlooks
the critical fact that the number of cable systems that can be physically accommodated by
public streets, utility poles and conduits of a city is finite. Even if two or more systems can be
physically accommodated, greater numbers may not be. In Palo Alto, for example, five prospec-
tive cable operators initially sought to provide cable services; it is not at all clear from the facts
of the case that this number of cable systems could be accommodated by the available public
rights-of-way. The physical scarcity of public rights-of-way necessary for the installation of
cable systems is thus analogous to that of the broadcast frequency. See Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 388 (1969) ("[w]here there are substantially more individuals who
want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First •
Amendment right to broadcast comparable to the right of every individual to speak, write, or
publish.''). ,.'. .. -r, i_.:- ..,
Indeed, the number of broadcast stations that can be physically accommodated on the
broadcast frequencies in a particular geographic location may be greater than the number of
cable systems that could be accommodated' on public rights-of-way. In such situations, the
physical.scarcity of cable exceeds that of broadcast. Moreover, where only one cable system can
,
r;
634 Stetson Law Review [Vol: XVII
Nevertheless, counsel to- franchising jurisdictions should under-
stand that, if the rationale of the California cases is accepted and
adopted by other courts, it could bedifficult to justify granting a sin-
gle franchise for any area; where there is more than one applicant, or
even limiting franchises : to any number short of the number 'of sys-
tems that could be physically accommodated. Moreover, many typi-
cal conditions of cable franchises . — including conditions that
franchising authorities are expressly authorized to enforce under pro-
visions of the Cable Act, such as PEG access channel requirements
and commitments to provide broad categories of program services —
may also be deemed violative of the cable operators' first amendment
rights.
Counsel for franchising jurisdictions should also consider that
the franchising authority may be liable for both compensatory dam-
ages and attorney's fees for having violated a potential cable opera-
tor's first amendment rights. Persons alleging deprivation of their
first amendment rights may bring suit under 42 U.S.C. 1983, which
creates a "species of 'tort liability' in favor of persons who are `de-
prived of rights, privileges or immunities' secured to them by the
Constitution" by persons acting under color of state law."3 The level
of damages in a section 1983 suit "is ordinarily determined according
to principles derived from the common law of torts."'" Prevailing
parties may also be awarded attorney's fees pursuant to 42 U.S.C. §
1988.116
The basic purpose of section 1983 damages is to compensate per-
sons for damages suffered as a result of constitutional deprivation.116
Secondarily, however, compensatory damages also deter conduct
which violates the Constitution)." Accordingly, compensatory dam-
ages may include not only out-of-pocket losses and other monetary
be operated, a single cable operator controls the system's programming. In contrast, if several
broadcasters are present in an area, they can present several different points of view through
their choice of programming. This type of physical scarcity is directly analogous to that relied
upon by the Supreme Court in approving of both licensing and public interest regulation of
broadcasters by the FCC. See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 388; National
Broadcasting Co. v. United States, 319 U.S. 190, 226-27 (1943).
113. Carey v. Piphus, 435 U.S. 247, 253 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409,
417 (1976)).
114. Memphis Community School Dist. v. Stachura, 106 S. Ct. 2537, 2542 (1986); Smith v.
Wade, 461 U.S. 30, 34 (1983).
115. Kentucky v. Graham, 473 U.S. 159, 164 (1985). -
116. Carey v. Piphus, 435 U.S. 247, 254 (1978).
117. Memphis School Dist. v. Stachura, 106 S. Ct. at 2537, 2543 (1986).
'
s.Y
1988]
harms, but
anguish, al
In a ca
a corporate
from the p
spite the fa
lative.119 T:
lucrative f
result in a
In mal
to comply
on their fir
dictions m
motives an
grant them
are most li
renewal; he
At leaa
cal govern]
wish to har
may assun
problems a
provide poc
sive, defen,
potential li
construct a
may choose
Cable Act,
manner cor
cal governs
118. Id.
119. See e.
award of damai
Pierce, 617 F.2
damages for los
120. Morec
1983 because o1
punitive damag
U.S. 30 (1983).
121. See B
nevolent, that
those who are
subdivisions.").
ol. XVII
d under
ted and
ng a sin-
licant, or
r of sys-
my typi-
xns that
ider pro-
irements
rvices —
endment
der that
)ry dam-
e opera -
of their
3, which
are `de-
i by the
the level
ccording
revailing
U.S.C. §
;ate per-
ation.11s
conduct
ry dam-
ionetary
t, if several
aw through
that relied
gulation of
3; National
4 U.S. 409,
'); Smith v. •
1988] Regulating Cable Television 635
harms, but also such injuries as impairment of reputation, mental
anguish, and suffering.'"
In a case claiming unconstitutional denial of a cable franchise by
a corporate entity, the damages sought 'are likely to be lost profits
from the prospective business which the claimant was denied - de-
spite the fact that such profits would necessarily be somewhat specu-
lative.'" Thus, a suit charging that a cable operator was deprived of a
lucrative franchise in violation of its first amendment rights could
result in a substantial damage award.l2o
In many jurisdictions, cable companies may refuse to accept or
to comply with various franchise provisions, purportedly in reliance
on their first amendment freedoms. Likewise, officials in other juris-
dictions may confront multiple franchise applicants (with varying
motives and levels of competence and experience), and be forced to
grant them all franchises or to choose among them. These problems
are most likely to arise as the incumbent's franchise comes due for
renewal; however, they can occur at any time.
At least until the first amendment law becomes more settled, lo-
cal governments must make a fundamental choice as to how they
wish to handle their cable -related responsibilities. Some jurisdictions
may assume that the market will in due course take care of the
problems of disfunctional, duplicative systems and of systems that
provide poor cable service. Such jurisdictions may elect to take a pas-
sive, defensive posture, electing primarily to seek only to minimize
potential liability by licensing all minimally qualified applicants to
construct a cable system on public rights-of-way. Other jurisdictions
may choose to continue to exercise the powers contemplated by the
Cable Act, which local governments have historically exercised, in a
manner consistent with traditional notions of the responsibility of lo-
cal governments in areas of direct local concern.121
118. Id.
119. See e.g. Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir. 1985) (affirming
award of damages for lost profits to vendor whose due process rights were violated); Flores v.
Pierce, 617 F.2d 1386, 1392 (9th Cir.), cert. denied, 449 U.S. 875 (1980) (affirming award of
damages for lost profits suffered by person denied liquor license in violation of civil rights).
120. Moreover,'although punitive damages are not available against a municipality under §
1983 because of its sovereign immunity, Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981),
punitive damages may be available against a municipal official personally. Smith v. Wade, 361
U.S. 30 (1983). "
121. See Bute v. Illinois, 333 U.S. 640, 652 (1948) ("[n]o national authority, however be-.
nevolent, that governs over 130,000,000 people in 48 states, can be as closely in touch with
those who are governed as can the local authorities in the several states and their
subdivisions.").
a
636 Stetson Law Review [Vol. XVII
CONCLUSION
For the reasons discussed in this Article, cable television regula-
tion and franchising are likely to remain characterized by a 'good deal
of uncertainty. Particularly from the standpoint of the practical con-
cerns of legal advisers to local governments, however, a few key
points emerge:
First, most local governments are likely to confront important
issues concerning cable over the next decade. Apart from issues that
may arise in other contexts, franchise renewals alone will occur in
literally thousands of jurisdictions before the end of the next decade.
Second, franchise renewals are no longer subject only to their
terms and the requirements of local law. With the enactment of the
Cable Act, franchises are now, in addition, subject to the provisions
of the Cable Act, as interpreted by the courts, and as further affected
by judicial decisions premised on first amendment grounds.
Third, despite some misconceptions to the contrary, under the
Cable Act local governments retain substantial powers to encourage
and require that local cable systems be responsive to the needs of the
communities they serve. In view of the potential liabilities that could
arise and the continuing uncertainty as to the appropriate first
amendment standard for cable regulation, however, local govern-
ments may need to make a fundamental choice. Do they want to use
the powers they retain under the Cable Act to protect the interests of
their citizens, or do they prefer, instead, to adopt a defensive strategy
designed to minimize any risk of liability for conduct that a court
might subsequently determine to violate a cable system operator's
first amendment rights?
Fourth, the formal renewal procedures contemplated by the
Cable Act may be commenced only during a six-month "window"
that begins a full three years prior to the expiration of the present
franchise. Legal advisers to local governments, in particular, must be
aware, therefore, of the need for advance planning and thought. A
local government that pays no attention to this area until the last
possible moment may find that its options have been limited, and its
risks increased, irrespective of what its preferred approach to cable
might be. Stated bluntly, any local government that fails to give seri-
ous consideration to the issues presented by franchise renewal before
the opening of that six-month window — that is, during the fourth
r0.
74
1988]
year pri
opportu
tem an(
ol. XVII
n regula-
ood deal
tical con -
few key
mportant
sues that
occur in
t decade.
to their
nt of the
rovisions
✓ affected
nder the
ncourage
ds of the
hat could
iate first
govern -
t to use
terests of
e strategy
t a court
perator's
d by the
"window"
e present
, must be
ought. A
1 the last
d, and its
to cable
give seri-
al before
he fourth
1988] Regulating Cable Television 637
year prior to expiration of a franchise or earlier — may squander the
opportunity both to maximize the benefits from the local cable sys-
tem and to minimize potential litigation risks.
iiitioduction
TABLE OF Cor,rprs
LIThe Development of Content Control in Broadcast
• -".-! Regulation
A. The Early Development of General Content Control
B. Control Over Sexually Explicit Broadcast Programming
...
1. Development of Obscenity and Indecency
Jurisprudence
•;,',":
2. Regulation of Broadcast Indecency
. , .
3. The Pacifica Case
. The Cable Indecency Cases and Asserted Distinctions
:,-,
' Between Cable and Broadcasting
--.,
A. The Cable Indecency Cases
7 ='--:B. Indecency Provisions of the 1984 Cable Act
Ill.: .The Similarity of Broadcasting and Cable
A. The Factual Elements
1. Physical Characteristics
(..,
,. 2. Nature and Degree of Viewer Choice
•,',,,,,
_ . 3. Nature and Degree of Viewer Control
B. The "Unique" Characteristics of Broadcasting:
Pervasiveness and Accessibility to Children
1. Pervasiveness
2. "The Children, The Children, Ill Not Forget the
4" Children"
C. Societal Justifications for Controlling Indecent
, •; ,
Programming
1. Individual Tastes and Sensibilities
1980's are a propitious time to expand first amendment freedom
pr the electronic media. Mark Fowler, the recent Chairman of the
4 ,
, -Profess& of Law, Arizona State University College of Law. B.A. 1967, Ph.D
.,i,Boston University; J.D. 1977, Yale Law School. Research for this Article was
"IPPorted in part by grants from the Arizona State University Faculty Grant -in -Aid Pro -
Ind the Arizona State University College of Law Cleary Grant Program. 1 would
,
to !ham nk my research assistants, Gaye Gould and Jim Belanger, for their valuable
460 FORDHAM LAW REVIEW [Vol. 55
Federal Communications Commission ("FCC" or "Commission") often
emphasized that, as nearly as possible, theprint media should be the
regulatory model for the electronic media.' Under Commissioner
Fowler, the FCC has had remarkable success in carrying out a deregu-
latory program toward this goal.' The Supreme Court recently advanced
this movement by suggesting that it may be time to reexamine the funda-
mental premise for much of broadcast regulation: the perceived scarcity
of the electromagnetic spectrum.3 Contemporaneously, the FCC
1. See, e.g.; Fowler and Brenner, A Marketplace Approach to Broadcast Regulation
60 Tex. L. Rev. 207, 209 (1982) ("the perception of broadcasters as community trustees
should be replaced by a view of broadcasters as market -place participants"); Deregula-
tion's Architect Finds the Structure Sturdy, Broadcasting, Dec. 23, 1985, at 44, 52 ("I'd
want to see the First Amendment firmly in the saddle in broadcasting. That means no
government content control, period.") (interview with Mark S. Fowler, Chairman, FCC);
The Bittersweet Chairmanship of Mark S. Fowler, Broadcasting, Feb. 18, 1985) at 39, 41
(regulatory relationship between FCC and broadcast media "should be the same as the
print people enjoy") (interview with Mark S. Fowler). Mr. Fowler has resigned, effective
in spring, 1987, and is to be succeeded by Commissioner Dennis Patrick. who generally
shares Mr. Fowler's views. See Broadcasting,' Feb. 9, 1987, at 43-44; Stuart, A Cautious
Deregulator, N.Y. Times, Feb. 7, 1987, at 13, col. 5.
2. See, e.g., Revision of Requirements for Commercial Television Stations, 98
F.C.C.2d 1076, 1115-16 (1984) (rep. & ord.) (deregulating commercial television), recon-
sid. denied, 104 F.C.C.2d 357 (1986); Revision of Requirements of Pub. Broadcasting
Licensees, 98 F.C.C.2d 746, 757 (1984) (rep. & ord.) (eliminating ascertainment require-
ments and relaxing program logging requirements for public broadcasting); Children's
Television Programming and Advertising Practices, 96 F.C.C.2d 634, 657 (1984) (rep. &
ord.) (refusing to adopt new regulation of children's programming), aff'd per curiam sub
nom. Action for Children's Television v. FCC, 756 F.2d 899 (D.C. Cir. 1985); Policy
Concerning Educ. Broadcast Stations, 86 F.C.C.2d 141, 160-61 (1981) (2d rep. & ord.)
(decreasing Commission's intervention in programming decisions of public broadcasters
by modifying rules pertaining to promotional programming and "on -the -air" fund-rais-
ing), reconsid. denied, clarification and deregulatory ruling granted, 90 F.C.C.2d 895
(1982); Deregulation of Radio, 84 F.C.C.2d 968, 971, 1014 (rep. & ord.) (eliminating
certain guidelines and requirements "to permit the discipline of the marketplace to play a
more prominent role"), reconsid granted in part, 87 F.C.C.2d 797 (1981), aff'd in part,
remanded in part sub nom. Office of Communication of United Church of Christ V. FCC,
707 F.2d 1413 (D.C. Cir. 1983), on remand, 96 F.C.C.2d 930 (1984), reconsid. denied, 57
Rad. Reg. 2d (P & F) 93 (1984), vacated and remanded, 779 F.2d 702 (D.C. Cir. 1985),
on remand, 104 F.C.C.2d 505 (1986); Revision of Application for Renewal of Radio and
Television Licenses, 49 Rad. Reg. 2d (P & F) 740 (rep. & ord.) (simplifying procedures
for license renewals applicable to all television and radio broadcast stations), reconsid'
denied, 87 F.C.C.2d 1127 (1981), aff'd sub nom. Black Citizens for a Fair Media v. FCC
719 F.2d 407 (D.C. Cir. 1983), cert. denied, 467 U.S. 1255 (1984). See generally The
Fowler Years: A Chairman Who Marched to His Own .Drummer, Broadcasting, Mar. 23, =i
1987, at 51-52.
3. /See FCC v. League of Women Voters, 468 U.S. 364, 376 n.11 (1984).
Comprehensive government regulation of broadcasting has been justified by the per-
ceived, inherent, physical limit to the available broadcast frequencies at least since the,:.
Radio Act of 1927, ch. 169, 44 Stat. 1162 (1927), created the Federal Radio Commissionit
See, e.g., Statement on Public Interest, Convenience, or Necessity, 2 FRC Ann. Rep 166,
168, 170 (1928) (citing "the paucity of channels," the "limited facilities for broadcast-
ing," and the fact that the "number of persons desiring to broadcast is far greater than 3r.
can be accommodated" to justify regulation under the public interest standard). Justice t
Frankfurter's expansive and much criticized opinion for the Supreme Court in National
Broadcasting Co. v. United States, 319 U.S. 190 (1943), first gave priority to the rationale :t!
1
1'8
Ia i- ched a
frme, or
t amei
Viand there
interest
(,za mon
the Coo
bin Bro
zens Comm. g
y,' . ren. Voter
1
a ew3of76. theTh
F.
sniA suggested
6"n.11. Cf.
•s•: (D.C. Cir.
t ten the prini
of tfie latter, is
ytic tool .
wed by Judge
* 1987) (No.
R :Ciri't Cable BE
, S
7 4. See Fai
Report, 102 F.1
Television New
only as to cons:
cit v :Television
r; tile1985 Fa
eaitastitutional
titers, 468 U.
Although in
filter or repeal 1
suspect, un
oerces speech.
of Appea
nom: Justice, Sc
finding the doct
e.L,. Telecorm
CirS. 1986), reh'g
U L.W. 36081
.863.(D.C. Cir. 1
unless the Com
public interest).
:, reprinted
• tive meal
before
Sess.,
thrs statutory
,- • ent regarc
°• e;2F.0
,r 5"The FCC
ofbroadcast
tion of c
(1974), reconsi
°r .5
- Comm. for
.926 (1978),
OntVi consid a
1•
or "Commission") 6
t media should l e5tb,
Under Commission:
carrying out a dere
• urt recently advan' ,
to reexamine the finl`�
: the perceived soarer'
oraneously, the irk%
ch to Broadcast Regulatio
ters as community "`�°
ce Participants"); Deregu _;
ec. 23, 1985, at 44, 52-('' i`,
oadcasting. That means1"; ,
. Fowler, Chairman,.F "
g, Feb. 18, 1985, at 3,-;14.1
"should be the same a
owler has resigned, effective
nis Patrick, who gen ��
t 43-44; Stuart, A Cau
al
on
'�*1 ercial televis on), recon-
ents of Pub. Broadcasting
ting ascertainment requite:-
broadcasting);
equir .broadcasting); Childrent,
2d 634, 657 (1984) (reps:
g), af'd per curiam
(D.C. Cir. 1985); Poli;
61 (1981) (2d rep. & ;oil.
ons of public broadcasters
d "on -the -air" fund -4-
ranted, 90 F.C.C.2d ;;895
(rep. & ord.) (eliminating
the marketplace to play
797 (1981), aif'd in pari,
Church of Christ v. FCC,
984), reconsid. denied,;..,
.2d 702 (D.C. Cir. 198
or Renewal of Radio. 'aid
) (simplifying procedlu rs
• cast stations), recotsid
for a Fair Media v.. = s
984). See generally; ...
, Broadcasting, Mar.r23
6 n.11 (1984).4.
n justified by theper-
G;
mores at least sing]
eral Radio Coriani:5 o
2 FRC Aria. Re .,'1
facilities for ItilnA..
deist is far greater'
rest "standard) 4J '
reme' Count in Nati
priority to the ,rati
a
2.
498 • THE SIGNAL CABLESEN
'inched a formal inquiry4-.into the continuing viabilityrof the fairness
octrine, one of the most inhibiting features of the remaining regulation.5
`':over first amendment concerns. In Frankfurter's words, "[t]he facilities of radio are lim-
`>ited and therefore precious; they cannot be left to wasteful use without detriment to the
``public interest." See id. at .216. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
:;;(1969), a more modern Court reaffirmed this approach, and in a number of subsequent
` the Court continued to rely on the scarcity rationale. See id. at 388. See eg.,
";Columbia Broadcasting Sys. v. FCC, 453 U.S. 367, 394-97 (1981); FCC v. National Citi-
zens Comm. for Broadcasting, 436 U.S. 775, 795, 799-800 (1978). In FCC v. League of
Women Voters, 468 U.S. 364 (1984), the Court again restated the scarcity rationale in its
review of the "fundamental principles that guide our evaluation of broadcast regulation."
Id at 376. The Court, however, then noted increasing criticism of the scarcity rationale
'and suggested that it might be time to reconsider that "longstanding approach." Id. at
376 n_11. Cf Telecommunications Research and Action Center v. FCC, 801 F.2d 501,
508 (D.C. Cir. 1986) ("The basic difficulty in this entire area is that the line drawn be-
tween the print media and the broadcast media, resting as it does on the physical scarcity
of the latter, is a distinction without a difference. Employing the scarcity concept as an
analytic tool ... inevitably leads to strained reasoning and artificial results.") (Bork, J.
joined by Judge, now Justice, Scalia), petition for cert. filed, 55 U.S.L.W. 3608 (U.S. Feb.
20, 1987) (No. 86-1370). See generally Winer, The Signal Cable Sends—Part I: Why
Can't Cable Be More Like Broadcasting?, 46 Md. L. Rev. 212, 218-40 (1987).
4. See Fairness Doctrine Inquiry, 49 Fed. Reg. 20,317 (1984); Fairness Doctrine
Report, 102 F.C.C.2d 143 (1985), petition for review dismissed in part per curiam, Radio -
Television News Directors Ass'n v. FCC, 809 F.2d 860 (D.C. Cir. 1987) (review denied
only as to constitutional challenge) (a rehearing has been granted); Syracuse Peace Coun-
cil v. Television Station WTVH, 52 Fed. Reg. 2805 (1987) (requesting comment, in light
of the 1985 Fairness Doctrine Report, on whether enforcement of fairness doctrine is
constitutional and contrary to the public interest); see also FCC v. League of Women
Voters, 468 U.S. 364, 378 n.12 (1984).
Although in the Fairness Doctrine Report the Commission deferred to Congress to
alter or repeal the fairness doctrine, the Commission strongly assailed it as constitution-
ally suspect, unnecessary, and no longer serving the public interest because it chills and
coerces speech. See Fairness Doctrine Report, 102 F.C.C.2d 143, 147-48 (1985). The
Court of Appeals for the District of Columbia, however, in an opinion• joined by Judge,
now Justice, Scalia, recently lessened the Commission's need to defer to Congress by
finding the doctrine to be "an administrative construction, not a binding statutory direc-
tive." Telecommunications Research & Action Center v. FCC, 801 F.2d 501, 517 (D.C.
Cir. 1986), reh'g en bane denied, 806 F.2d 1115 (D.C. Cir. 1986), petition for cert filed, 55
U.S.L.W. 3608 (13 5. Feb. 20, 1987) (No. 86-1370). See Meredith Corp. v. FCC, 809 F.2d
863 (D.C. Cir. 1987) (requiring FCC to consider constitutional challenges to the doctrine,
unless the Commission decides not to enforce the doctrine because it is contrary to the
public interest). But see House Conference Rep. No. 1005 on H.J.R. 738, 99th Cong., 2d
Sess., reprinted in 132 Cong. Rec. H10,599, H10,619 (1986) (requiring FCC to consider
alternative means of administering and enforcing the fairness doctrine and to report to
Congress before changing the doctrine); Jt. Stmt. of Comm. Conf. on H.J.R. 738, 99th
Cong., 2d Sess., reprinted in 132 Cong. Rec. H10,709, 10,720 (1986) (same). In response
to this statutory directive, the Commission has issued a Notice of Inquiry to solicit public
comment regarding alternatives to the fairness doctrine. Alternatives to the Fairness
Doctrine, 2 F.C.C. Rod, 1532 (1987). •
5. The FCC's, fairness doctrine requires broadcasters to devote a reasonable percent -
e of broadcast time to the coverage of public issues -and provide an opportunity for the
resentation ofcontrasting points of view..See Fairness Doctrine Report, 48 F.C.C.2d 1,
(19741 denied,; 58 F.C.C.2d 691 (1976), "q$'d in part sub nom. National Citi-.
• zens:Comm.-for Broadcasting v. FCC,'567,F.2d 1095 (D.C. Cir.: 1977), cert denied, 436.
U.S. 926 (1978), on remand, Fairness Doctrine Inquiry, 74, F.C.C.2d 163 (1979) (rep. &
ord.), reconsid. denied, 89 F.C.C.2d 916 (1982). ' . •
1T,
'5
•
462 FORDHAM LAW REVIEW [Vol. 55
In the cable television area, the Commission,6 soon supported by the
Supreme Court,' maintained that much state and local regulation of
cable is federally preempted, thereby substantially deregulating that in-
dustry. Congress, in the Cable Communications Policy Act of 1984
("1984 Cable Act"),8 codified much of the preemption and deregulation.
In addition, the Court of Appeals for the District of Columbia found
unconstitutional the FCC's "must -carry" rules, which required cable sys-
tems to carry local broadcast signals.9 Requirements that cable operators
provide access to their systems10 are increasingly subject to attack on first
amendment and other grounds. t t More generally, the Ninth Circuit has
questioned the constitutionality of several elements of the basic cable
franchising scheme under the 1984 Cable Act.t2
As encouraging as these deregulatory trends are, broadcasting will
achieve its due first amendment status only when the law no longer treats
the broadcast spectrum as a peculiarly unique and scarce resource sub-
ject to greater regulation than other media. Changing this perception of
6. See Cox Cable New Orleans, Inc. v. City of New Orleans, 100 F.C.C.2d 717
(1984) (reaffirming Commission's preemption of regulations concerning cable operator's
retiering of service offerings); Community Cable TV, Inc., 95 F.C.C.2d 1204, 1218 (1983)
(extending federal preemption of cable television system rate regulation to specialized or
auxiliary cable services), reconsid. denied, 98 F.C.C.2d 1180 (1984).
7. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700-01 (1984) (affirming the
FCC's "unambiguously expressed ... intent to pre-empt any state or local regulation .. .
of signals carried by cable television systems").
8. Cable Communications. Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779
(codified at 47 U.S.C. §§ 521-59 (Supp. III 1985)), reprinted in 1984 U.S. Code Cong. &
Admin. News (98 Stat.) 2779.
9. Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1454 (D.C. Cir. 1985), cert. de-
nied, 106 S. Ct. 2889 (1986). For many years, the must -carry rules required cable sys-
tems to carry all local and other "significantly viewed" broadcast signals. See 47 C.F.R.
§§ 76.51-76.67 (1985). See generally C. Ferris, F. Lloyd, & T. Casey, Cable Television
Law, ¶¶ 7.04-7.09 (discussing history of must -carry rules). The FCC, however, acqui-
esced in and, indeed, praised the Quincy decision, see statement of Chairman Fowler and
Comm'rs Dawson and Patrick, 58 Rad. Reg. 2d (P & F) 1005 (1985), but the National
Association of Broadcasters sought Supreme Court review. Under pressure from Con-
gress, however, and after a compromise between major cable and broadcast interests, the
Commission has reimposed a less burdensome form of must carry. See Must Carry
Rules, 61 Rad. Reg. 2d (P & F) 792 (1986), modified on reconsid., 62 Rad. Reg. 2d (P&F)
— (1987). These new rules base broadcast carriage requirements on the channel capac-
ity of the cable system.
10. See infra notes 266-70 and accompanying text.
11. See, e.g, Berkshire Cablevision, Inc. v. Burke, 571 F. Supp. 976, 987 (D.R.I.
1983) (mandatory access regulations do not violate first amendment), certified question
answered, 488 A.2d 676 (R.I.), vacated as moot, 773 F.2d 382 (1st Cir. 1985).
12. See Preferred Communications, Inc. v. Los Angeles, 754 F.2d 1396, 1410-11 (9th
Cir. 1985), afd on narrower grounds, 106 S. Ct. 2034 (1986); see also Century Fed., Inc.
v. City of Palo Alto, 648 F. Supp. 1465, 1478-79 (N.D. Cal. 1986) (following Preferred
Communications granting partial summary judgment toplaintiffs on a first amendment
challenge to a municipality's exclusive franchising arrangement for a cable operator); cf.
Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 711, 717 (8th Cir.
1986) (rejecting first amendment challenge to a de facto exclusive franchising scheme for
cable operators in part because cable television market is a natural monopoly), cert. de-
nied, 55 U.S.L.W. 3586 (U.S. Mar. 3, 1987) (No. 86-1159).
1987]
the broa
ble, con
other er
saddled
Consegt
if it eve
ought tc
petition
elude re
For tl
broadca
that Art
from rel
media, a
to apply
dards th
I advoa
the two
amendtr
regulatic
The c
pose a
greater i
bled to
Pacifica
censorsl
for cont
13. T1
namely th
video pros
service,"
Act).
n:'zr 14. Se
15. 43
16. Fc
U.A. For
Cable Co
Hofbauer
rCCable Tel
Indecent
11606 (1983
Indecency
`Indecency
Content, l
endme
4,965 (1983
Al, Geo. NI
,HBO v. V
applicable
t?e Cable:
tfi
[Vol. 55
supported by the
local regulation of;
;regulating that in=
olicy Act of 1984:4
and deregulation'
)f Columbia found;;
required cable sys-
hat cable operators
ct to attack on first
Ninth Circuit
of .the basic cable
n
1
broadcasting will
w no longer treats
arce resource sub -
this perception of
s, 100 F.C.C.2d 717
ruing cable operator's :r
.2d 1204, 1218 (1983)
ation to specialized or
1 (1984) (affirming the
or local regulation ...'
98-549, 98 Stat. 2779
4 U.S. Code Cong. &
Cir. 1985), cert. de- c.
es required cable sys-
ignals. See 47 C.F.R.
sey, Cable Television
CC, however, acqui-
Chairman Fowler and
85), but the National
r pressure from Con-
roadcast interests, the
rry. See Must Carry
2 Rad. Reg. 2d (P&F)
on the channel capac-
pp. 976, 987 (D.R.I.
nt), certified question
Cir. 1985).
2d 1396, 1410-11 (9th.
lso Century Fed., Inc.'
) (following Preferred,
on a first amendment:
a cable operator); cf.
2d 711, 717 (8th Cir. 't
anchising scheme for `"
monopoly), cert. de -
t
L
;a
; kt
1987]
THE SIGNAL CABLE SENDS
463
the broadcast spectrum may depend, in turn, on the advent of compara-
ble, competing modes of communication, such as cable television and
other entrants in the new electronic video marketplace,13 that are not
saddled with the historical error of scarcity as a rationale for regulation.
Consequently, if broadcast and cable are perceived as fungible, scarcity,
if itever was a legitimate rationale, will be a thing of the past and so
ought to be much of the regulation based on it. At the same time, com-
petition from the essentially substitutable broadcast medium should pre-
clude regulation of cable based on its alleged monopoly position.
For these reasons, I have argued in a companion Article that cable and
broadcast television should be viewed as a single, unified medium.14 In
that Article, I show that judicial opinions that afford cable more freedom
from regulation than broadcasting, by ostensibly distinguishing the two
media, actually support their similarity. Consequently, there is no reason
to apply either to cable or to broadcasting different first amendment stan-
dards than to the print media. The unified cable/broadcasting approach
I advocate therefore encourages a vital symbiotic relationship between
the two media in which each medium supports for the other full first
amendment freedom from a broad range of actual and potential
regulation.
The cable indecency cases, however, are sui generis in this regard and
pose a potential impediment to this goal. In these cases, advocates of
greater first amendment freedom for the video marketplace have scram-
bled to distinguish cable from broadcasting to avoid the reach of FCC v.
Pacifica Foundation,15 the 1978 "seven dirty words" decision allowing
censorship of vulgar language on radio.16 Because the Pacifica rationale
for controlling broadcast indecency is generally thought, somewhat in -
13. This Article focuses on one facet of the electronic communications market,
namely the comparison between cable and broadcast television in the delivery of audio/
video programming. See 47 U.S.C. § 522 (5), (11), (16) (Supp. III 1985) (defining "cable
service," "other programming service," and "video programming" in the 1984 Cable
Act).
14. See Winer, supra note 3.
15. 438 U.S. 726 (1978). For a discussion of Pacifica, see infra Part I.B.3.
16. For a discussion of the cable indecency cases taking this approach, see infra Part
II.A. For commentary that generally supports such a distinction, see Geller & Lampert,
Cable, Content Regulation and the First Amendment, 32 Cath. U.L. Rev. 603 (1983);
Hofbauer, "Cableporn" and the First Amendment Perspectives on Content Regulation of
Cable Television, 35 Fed. Comm. L.J. 139 (1983); Krattenmaker & Esterow, Censoring
Indecent Cable Programs: The New Morality Meets the New Media, 51 Fordham L. Rev.
606 (1983); McFadden, Inviting the Pig to the Parlor:: The Case Against the Regulation of
Indecency and Obscenity on Cable Television, 8 Colum. J. Art & L. 317 (1984); Robbins,
Indecency on Cable Television—A Barren Battleground for Regulation of Programming
Content, 15 St. Mary's L.J. 417 (1984); Note, Obscenity, Cable Television and the First
Amendment Will FCC Regulation Impair the Marketplace of Ideas?, 21 Duq. L. Rev.
965 (1983); Note, Indecent Programming on Cable Television and the First Amendment,
51 Geo. Wash. L. Rev. 254 (1983); Note, Regulation of Indecent Television Programming:
HBO v. Wilkinson, 9 J. Contemp. L. 207 (1983). For arguments that Pacifica should be-.
applicable to cable to allow some measure of indecency control, see Riggs, Indecency on
the Cable: Can It Be Regulated?, 26 Ariz. L. Rev. 269 (1984); Wardell, Cable Comes of
464 FORDHAM LAW REVIEW [Vol. 55
correctly, not to rely on spectrum scarcity," the cable indecency cases
rest on distinctions other than scarcity. Based on these distinctions,
courts to date have, for the most part, correctly forestalled censorship
but often for the wrong reasons. This Article concludes that distinguish-
ing cable from broadcast television in the indecency context , is wrong,
outmoded, and unnecessary. More important, it is antithetical to the de-
veloping symbiotic relationship between cable and broadcasting and,
therefore, detrimental to maximizing first amendment freedom for the
electronic media.
Part I of this Article surveys generally the development of content reg-
ulation in broadcasting and,. specifically, control over indecent program-
ming, culminating in Pacifica. It shows that Pacifica is unsupportable
and technologically outdated. Censoring anything except legal obscenity,
therefore, should be improper in both cable and broadcasting. Part II
examines the distinctions between cable and broadcasting asserted in the
case law to exclude cable from indecency regulation. Part III demon-
strates that these asserted distinctions are unconvincing and inimical to -
the broader goal of viewing cable and broadcasting as fungible to afford
each the same first amendment status as the print media. The approach
of the cable indecency cases, therefore, should be abandoned.
I. THE DEVELOPMENT OF CONTENT CONTROL IN BROADCAST
REGULATION
Censorship of George Carlin's radio monologue at issue in Pacifica
would be unthinkable in most other nonbroadcast media.18 To under-
stand, then, why there even was an issue over the radio broadcast re-
quires examination of the statutory, regulatory, and judicial background
of general content control in broadcasting, particularly as to indecent or
offensive programming.
A. The Early Development of General Content Control
Congress has long shown concern for broadcasters' freedom of ex-
presssion. Section 29 of the 1927 Radio Act specifically precluded gov-
ernment censorship of radio communication.19 Moreover, the Federal
1987]
Radio Commi
any censorshil
general power
`of the Act's c
tense, or nese
pounced that
applications w
Ohs is good, i
veen
n
ce
or nc
of `all substan•
some fair pror
mmission c
prevail over tl
• In addition
perceived a:
networks and
;:eccentric broa
`field the FRC'
eemed incon:
'for control of
In KFKB B
,#on was conti
druggists to d:
Age: A Constitutional Analysis of the Regulation of "Indecent" Cable Television Program-
ming, 63 Den. U.L. Rev. 621 (1986).
17. See infra note 197.
18. See infra notes 65-107 and accompanying text. Indeed, no party contended that
the Carlin monologue was obscene. Moreover, the Court in Pacifica used the lawful
availability of the monologue in other media, such as records and nightclub perform-
ances, to support its decision because, it reasoned, banning the radio broadcast would be
far from total censorship. See FCC v. Pacifica Found., 438 U.S. 726, 731, 750 n.28.
(1978).
19. Radio Act of 1927 Ch. 169, § 29, 44 Stat. 1162, 1172, repealed by, Communica-
tions Act of 1934, ch. 652, § 602, 48 Stat. 1064, 1102. Section 29, however, prohibited
the utterance on radio of "any obscene, indecent, or profane language." See id. at 1173.
See infra note 118. Section 29 became § 326 of the 1934 Communications Act, and the
legislative history
United States Coc
restriction on the
absolutely no poa
any regulation or
See.S. Rep. No.
` ' 20. Radio Ac
1170. See Winer,
21. Great Lal
'n other grounds,
,: 22. Id. at 34.
considered offens
2• 3. See S. He,
fo'r example, CBE
would have allud
' 24. Id. at 14!
so .bold as to brc
minded NBC of
1930's, the FCC
" fi•r.
contraceptive adv
*misleading p
Ory of Ameri
X25. See infra :
Sri of;a Commission
gram service, the
Ce in evalua
echnical Radio
26. 47 F.2d 6
able indecericr
n these distinctio
3restalled cens_oj
ides that distingiisl
cy context is -wrong,
antithetical to the da
3 broadcasting'° aII'
Lent freedom for stli
anent of ent cont'..re
:r indecent progf:,1
ica is. unsupportable
rept legal obscenity;
roadcasting. Part __lI
sting asserted in the
n. Part III demon?Y
_r.k,
Ging and inimical tc
as fungible to afford
edia. The approach
)andoned.
. IN BROADCAST
at issue in Pacifica
nedia.18 To under-
radio broadcast ie
judicial backgrouniy
•ly as to indecent of`,
`ent Control
.rs' freedom of ex=
ally precluded gov,:-.
reover, the Federal
rble Television Program
to party contended that 1?
ac(ca used the Lawful
and nightclub perform=;
dio broadcast would be
.S. 726, 731, 750 n.28
waled by, Communica1.
9, however, prohibited_
uage." See id. at 1173.r
inications Act, and the :;
987] THE SIGNAL CABLE SENDS 465
gadio Commision ("FRC"), established by the Act, ostensibly eschewed
any censorship role. Nevertheless, the Commission quickly assumed the
general power to control radio program content through an application
of the Act's central regulatory standard, the "public interest, conven-
ience, or necessity.i20 In an early exercise of this power, the FRC an-
nounced that its main interest in .evaluating competing license
applications was to insure that "the program service of broadcasting sta-
tions is good, i.e., in accordance with the standard of public interest, con-
venience or necessity."21 This meant that "the tastes, needs, and desires
of all substantial groups among the listening public should be met, in
some fair proportion, by a well-rounded program."22 In this regard, the
Commission clearly considered the interests of the public as listeners to
prevail over those of broadcasters as speakers.
In addition to this general policy, the FRC soon reacted against what
it perceived as specific broadcaster abuses. Although most early major
networks and stations were quite formal and conservative,23 a number of
eccentric broadcasters engaged in excesses.24 Two early cases that up-
held the FRC's right not to renew a license because of program content
deemed inconsistent with the public interest standard set the precedent
for control of broadcast indecency.25
In KFKB Broadcasting Association, Inc. v. FRC,26 plaintiff radio sta-
tion was controlled by Dr. Brinkley, who had formed an association of
druggists to dispense numbered prescriptions prepared according to the
legislative history of a 1948 amendment to § 326, see Codification of Title 18 of the
United States Code, ch. 645, § 1464, 62 Stat. 683, 769 (1948), emphasized the "hands-off"
restriction on the Commission: "[S]ection 326... makes clear that the Commission has
absolutely no power of censorship over radio communications and that it cannot impose
any regulation or condition which would interfere with the right of free speech by radio."
See S. Rep. No. 1567, 80th Cong., 2d Sess. 14 (1948) (emphasis added).
20. Radio Act of 1927, ch. 169, §§ 4, 4(f), 9, 11, & 21, 44 Stat 1162, 1163-64, 1166,
1170. See Winer, supra note 3, at 217 n.17 (discussing this standard).
21. Great Lakes Broadcasting Co. v. FRC, 3 FRC Ann. Rep. 32, 33 (1929), modified
on other grounds, 37 F.2d 993 (D.C. Cir.), cert. dismissed, 281 U.S. 706 (1930).
22. Id. at 34. It soon became clear, however, that "all" did not include programming
considered offensive to many.
23. See S. Head & C. Sterling, Broadcasting in America 145 (4th ed. 1982). In 1934,
for example, CBS declined to carry a speech by the United States Surgeon General that
would have alluded to venereal disease. Id.
24. Id. at 146. Moreover, when the National Broadcasting Company ("NBC") was
so bold as to broadcast certain dialogue in a Mae West comedy routine, the FCC re-
minded NBC of the proper standards of taste and propriety. Id. at 145. In the late
1930's, the FCC also expressed its disapproval of other subject matter, such as astrology,
contraceptive advertising, horse race information broadcast in code, fraudulent products,
and misleading personal advice. See C. Sterling & J. Kittross, Stay Tuned: A Concise
History of American Broadcasting 189 (1978).
25. See infra notes 26-40 and accompanying text. In an earlier case, the first appeal
of a Commission decision denying a license renewal based in part on the licensee's pro-
gram service, the court simply assumed that the Commission could consider program
service in evaluating a licensee's performance under the public interest standard. See
Technical Radio Lab. v. FRC, 36 F.2d 111, 114 (D.C. Cir. 1929).
26. 47 F.2d 670 (D.C. Cir. 1931).
466 FORDHAM LAW REVIEW
[Vol. 55
doctor's formulas. Dr. Brinkley broadcast a regular question -and -answer
period in which he would respond to listeners' letters, make a diagnosis,
and prescribe by number one of his medications, for which he received a
fee from the dispensing druggist.27
Upon challenge to the FRC's denial of KFKB's license renewal appli-
cation, the court held that the limited number of available broadcast fre-
quencies allowed the FRC to consider "the character and quality of the
service to be rendered," as measured by a station's past conduct.28 In
fact, because the Commission considered past conduct, albeit to deny an
opportunity for future broadcasting, the court found there was no at-
tempt at prior restraint. Consequently, finding no censorship in violation
of section 29, the court had little difficulty sustaining the FRC's
decision.29
A more troublesome case, dealing with allegedly defamatory and ob-
jectionable language, was decided the next year. In Trinity Methodist
Church v. FRC,30 a church owned a Los Angeles radio station that was
operated by its minister, Dr. Schuler. The minister's broadcasts attacked
other religions and sought to influence the outcome of pending court
cases. For the latter activity Dr. Schuler had already been cited for con-
tempt of court. Because of these activities the FRC denied the station's
license renewal application.31 The station's appeal squarely presented to
the Court of Appeals for the District of Columbia a first amendment
challenge to the FRC's authority to regulate offensive programming,
without the issue of improper practice of medicine that had complicated
KFKB.
Although the court paid homage to first amendment freedoms with
reference to Milton's Areopagitica and other works,32 the only case cited
in support of such freedom33 was the Supreme Court's recent prior re-
straint case, Near v. Minnesota.34 In Near, the Supreme Court struck
down a state statute allowing the "abatement, as a public nuisance, of a
`malicious, scandalous and defamatory newspaper.' "35 The Trinity
Methodist court, however, followed the dissent in Near, which did not
view the nuisance abatement statute as a prior restraint because it did not
authorize previous administrative control of what was printed.36 In the
Near dissent's_ view, abatement only punished improper past publication,
which was an "abuse of the right of free press.s37 Similarly, the court in
27. See id. at 671.
28. Id. at 672.
29. See id.
30. 62 F.2d 850 (D.C. Cir. 1932), cert. denied, 288 U.S. 599 (1933).
31. See id. at 850-52.
32. See id. at 851.
33. See id.
34. 283 U.S. 697 (1931).
35. See id. at 701-02, 722-23.
36. See id. at 735 (Butler, J., dissenting).
37. Id.
,1987]
Trinity Methods:
;expression
does not meg
Congress, mg
to broadcast
denial of the
latory power
authority.38
This is clearl
Court recognize
subsequent puns
tiRather, the stat
:nonrenewal of a
ute, in operatic)]
fore invalid.39
Consequently
mation, contem
Near opinion m
renewal becaus
Supreme Court
r 'until National ,
amendment's re
In the meanti
1934,42 the Fec
FRC, continue(
38. Trinity Me
Minnesota, 283 U.
in KFKB Broadcs
reason'for the cour
itv in Near.
39. Near v. Mi
40. See Trinity
peals' failure to fol
'4 Trinity Methodist ;
-; ceived a difference
tion of different fir
passing reference
-- FRC's role in .00r
;;Trinity Methodist,
distinctions betwe
s.however, the disti
x,•t
cepted for radio, y
aguish proper cor
'interference and tc
realm of censorshi
190 (1943), it may
A, 41. 319 U.S. 1
220-27.
:11„3„ 42. Ch. 652, 41
&Supp. III 1985)
:stion-and-a nsw_
make a diagnosis
zich he receive
ise renewal's
..: i?Pli
ble broadcast
Ind quality ofth
ast conduct 28 ' I]
albeit to deny;�an
there was no ;at
)rship in violation
ining the FRC's',
famatory and ob=';
Trinity Methodist;
station that was
oadcasts attacked
of pending cour't`s
een cited for con
;Hied the station's
arely presented t
first amendment
ve programming;
had complica
nt freedoms wi
he only case cited
's recent prior re-
;me Court struck,
ilic nuisance, of a_
"35. The Trinity;:
zr, which did no,t•
because it did not`e'
printed.36 In th;,
past publicatioi
larly, the court
1987] THE SIGNAL CABLE SENDS 467
Trinity Methodist, citing KFKB, ruled that first amendment freedom of
expression
does not mean that the government, through agencies established by
Congress, may not refuse a renewal of license to one who has abused it
to broadcast defamatory and untrue matter. In that case there is not a
denial of the freedom of speech, but merely the application of the regu-
latory power of Congress in a field within the scope of its legislative
authority."
This is clearly contrary to the majority opinion in Near. The Near
Court recognized that the effect of the abatement statute was not just
subsequent punishment for an offensive publication, like a suit for libel.
Rather, the statute proscribed any future publication, the same effect as
nonrenewal of a radio license. The Near Court thus found that the stat-
ute, in operation and effect, was "the essence of censorship," and there-
fore invalid.39
Consequently, although Dr. Schuler might have been liable for defa-
mation, contempt of court, or similar punishment for his broadcasts, the
Near opinion made clear that he .should not have been denied a license
renewal because of past offensive programming. Unfortunately, the
Supreme Court denied certiorari in this case,40 and waited for ten years,
until National Broadcasting Co. v. United State?' tb consider the first
amendment's restriction on government regulation of broadcasting.
In the meantime, from its inception under the Communications Act of
1.934,42 the Federal Communications Commission, as successor to the
FRC, continued the policy of controlling the content of radio program-
1933).
38. Trinity Methodist Church v. FRC, 62 F.2d 850, 851 (D.C. Cir. 1932). Near v.
Minnesota, 283 U.S. 697 (1931) had been decided the previous year but after the decision
in KFKB Broadcasting Ass'n v. FRC, 47 F.2d 670 (D.C. Cir. 1931). There was no
reason for the court of appeals in Trinity Methodist to follow KFKB instead of the major-
ity in Near.
39. Near v. Minnesota, 283 U.S. 697, 713, 722-23 (1931).
40. See Trinity Methodist Church v. FRC, 288 U.S. 599 (1933). The court of ap-
peals' failure to follow the Near majority, and the Supreme Court's denial of certiorari in
Trinity Methodist are ultimately inexplicable. But see infra note 190. If the courts per-
ceived a difference between the print media and radio broadcasting, justifying the applica-
tion of different first amendment standards to each, they did so sub silentio. Except for a
passing reference in Trinity Methodist to "limited facilities" as a justification for the
FRC's role in controlling program content notwithstanding the first amendment, see
Trinity Methodist, 62 F.2d at 852, there is no principled or reasoned discussion of the
distinctions between the two media that could lead to contrary conclusions. Perhaps,
however, the distinction lay in the unchallenged licensing system itself, which was ac-
cepted for radio, yet anathema for the press. Trinity Methodist, however, failed to distin-
guish proper consequences of licensing, such as technical ,regulations to reduce
interference and to maintain a system of broadcasting, from impermissible forays into the
realm of censorship. By the time of National Broadcasting Co. v. United States, 319 U.S.
190 (1943), it may have been too late for the Court to rethink this fundamental approach.
41. 319 U.S. 190 (1943). For a discussion of this case, see Winer, supra note 3, at
220-27.
42. Ch. 652, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. §§ 151-610 (1982
& Supp. III 1985)).
:p87]
apl
anticen
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pslens't
ar
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necessa
local cc
Ther
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doctrine
eompri:
tion, br
r ty
such as
52.5
53. Ic
tales
gran
, _ broa
marl
(14)
1.44;T athe 23
C
aor cons
Deregula
�•:of, Unite(
54. S
supra nog
Fund there
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I?.2d 108:
to limit t]
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trinel
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ut`prese
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ign
ertisin
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985 )
roadcas
'Capital
oomnierc
".aendm4
468
FORDHAM LAW REVIEW [Vol. 55
ming 43 The Commission, throughits licensing power, informally co-
erced stations to Keep their programming in line.44 Indeed, this coercive
power may have persuaded broadcasters, as an industry, to regulate their
own programming. In 1929, the National Association of Broadcasters
("NAB") promulgated a Code of Ethics proscribing the broadcast of any
material that "would commonly be regarded as offensive" or that could
be banned from the mails as fraudulent, deceptive or obscene.45 Until
very recently, the NAB promulgated radio and television codes specify-
ing standards of acceptable behavior for its members.46
In 1939, the FCC tried to set general standards by listing fourteen
kinds of program material or practices that it considered not to be in the
public interest.47 A few years later, in 1946, the FCC followed with the
"Blue Book,"48 a comprehensive statement of FCC programming policy
that also defended the authority for and propriety of judging the quality
of licensee programming. This analysis was based on the legislative his-
tory of the 1927 and 1934 Acts, the administrative practice under these
Acts and the decisions in KFKB, Trinity Methodist, and National Broad-
casting Co. v. United States.49 The Blue Book then enumerated four ma-
jor issues involved in the application of the public interest standard to
program service policy.5°
The FCC's Programming Policy Statement of 1960,51 which updated
43. See generally C. Sterling & J. Kitross, supra note 20, at 189 (like the FRC, "the
FCC ... could decide whether a station's policies and programs were in the public
interest").
44. See id. Between 1934 and 1941, for example, the Commission had to revoke only
two licenses, and it failed to renew only eight. Id.
45. NAB Code of Ethics (1929), reprinted in Documents of American Broadcasting
70 (F. Kahn 4th ed. 1984).
46. The NAB Code was eliminated as a result of a consent decree concluding a gov-
ernment antitrust action against the NAB. See United States v. National Ass'n of Broad-
casters, 553 F.Supp. 621, 626 (D.D.C. 1982).
47. The fourteen categories were:
(1) defamation, (2) racial or religious intolerance, (3) fortune-telling or similar
programs, (4) favorable reference to hard liquor, (5) obscenity, (6) programs
depicting torture, (7) excessive suspense on children's programs, (8) excessive
playing of recorded music to fill air time, (9) obvious solicitation of funds,
(10) lengthy and frequent advertisement, (11) interruption of "artistic pro-
grams" by advertising, (12) false, or fraudulent or otherwise misleading adver-
tising, (13) presentation of only one side of a controversial issue -an early
statement of the Fairness Doctrine and, (14) refusal to give equal treatment to
both sides in a controversial discussion.
C. Sterling & J. Kitross, supra note 24, at 189 (citation omitted). •
48. FCC, Public Service Responsibility of Broadcast Licensees (1946). This was
dubbed the "Blue Book" because of the color of its cover.
49. Id at 9-12.
50. See id. at 12-47. The issues were: (1) the carrying of sustaining (i.e. non -spon-
sored) programs to supplement standard commercial fare; (2) the carrying of local live
programs; (3) the carrying of discussions of public issues; and (4) the elimination of com-
mercial advertising excesses. Id. at 12-47. -
51. 44 F.C.C. 2303 (1960) (en banc), of 'd sub nom. Henry v. FCC, 302 F.2d 191
(D.C. Cir.), cera denied, 371 U.S. 821 (1962).
1, •
.1
«t
1.
•
fig, fo;
t to bkiiiiltr,
wed with �<
g Policy
gthe q` •...
egislative j
e under,these
tional Broad:
ted fou= ma-
t standard',to
87]
THE SIGNAL CABLE SENDS
469
:,-
Ibis approach, accorded more deference to the first amendment and the
;ti -provision of the 1934 Act. CitingSupreme Court deci-
�ttcensorship P
r;,,•.. first amendment protection for films,the Commission
.:-�gtons confirming
.ostensibly disavowed any role in matters of taste or in deciding whether a
i;.AF-
program is good or bad—apart from obscenity, profanity, and inde-
cy.52 Nonetheless, the FCC listed fourteen "major elements usually
" sa to meet the public interest" standard for service of a station's
t`:IIeces ry
?�,
;. 1oca1 community.53
There are numerous other FCC rules, policies, and actions that im-
pinge significantly on the content of broadcast programming and, there-
`'ffore, raise their own first amendment considerations. The fairness
doctrine and related rules governing political or electoral broadcasts'
comprise probably the most significant and important of these. In addi-
tion, broadcasters' programming freedom is limited in various categories
such as cigarette55 and liquor" advertisement; drug-related song lyrics57;
52. See id. 44 F.C.C. at 2306-10.
53. Id. at 2314. These included:
(1) opportunity for local self-expression, (2) the development and use of local
talent, (3) programs for children, (4) religious programs, (5) educational pro-
grams, (6) public affairs programs, (7) editorialization by licensees, (8) political
broadcasts, (9) agricultural programs, (10) news programs, (11) weather and
market reports, (12) sports programs, (13) service to minority groups, and
(14) entertainment programs.
`Id. at 2314.
The Commission, however, specifically referred to this list as "neither all -embracing
nor constant." Id. The Commission repealed these categories for radio in 1981. See
'Deregulation of Radio, 84 F.C.C.2d 968, 971 (rep. & ord.) reconsid. granted in part, 87
F.C.C.2d 797 (1981), aff'd in part, remanded in part sub nom. Office of Communication
of United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983).
54. See supra note 5. For a discussion of the doctrine and related rules, see Winer,
supra note 3. at 268-78.
55. At one time, the FCC applied the fairness doctrine to commercial advertising,
and thereby required presentation of the dangers of smoking to counteract cigarette ad-
vertising. See WCBS-TV, 8 F.C.C.2d 381 (1967), aff'd sub nom. Banzhaf v. FCC, 405
F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969). After trying unsuccessfully
to limit the application of the fairness doctrine to the smoking controversy, see Friends of
r , the Earth v. FCC, 449 F.2d 1164, 1169 (D.C.Cir. 1971) (requiring FCC to apply fairness
doctrine to automobile and gasoline advertising based on its application to cigarette ad-
' vertising), the FCP reversed its policy and excluded most commercial advertising from
the ambit of the fairness doctrine. See Fairness Doctrine Report, 48 F.C.C.2d 1, 22-28
(1974). The exceptions were "editorial advertisements" that do not merely sell products
':but present a "meaningful statement which obviously addresses, and advocates a point of
~' view on, a controversial issue of public importance." Id. at 22-23. This new policy was
sustained. See Public Interest Research Group v. FCC, 522 F.2d 1060 (1st Cir. 1975),
cert. denied, 424 U.S. 965 (1976).
Congress, however, entered the cigarette controversy in 1969 by making cigarette ad-
rlvertising illegal on "any medium of electronic communication" subject to FCC jurisdic-
.,tton. See 15 U.S.C. § 1335 (1982). See generally 15 U.S.C. §§ 1331-42 (1982 & Supp. III
-1985) (regulating cigarette labeling and advertising). The ban was upheld in Capital
Broadcasting Co.v. Mitchell, 333 F. Supp. 582, (D.D.C. 1971), aff'd mem. sub nom.
Capital Broadcasting Co. v. Acting Attorney Gen., 405 U.S. 1000 (1972), at a time when
+ : commercial speech, particularly in the form of advertising, was given little or no first
`.;':amendment protection. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (mu-
.1
K
i4
t
t
470 FORDHAM LAW REVIEW
Ivo
3
nicipal ordinance forbidding distribution of commercial handbills in the streets is ..,
tutional). It has been argued that the ban on cigarette advertising has
unconstitutional in light of Virginia State Bd. of Pharmacyv. Virginia
Council, Inc., 425 U.S. 748 (1976) and its progeny, whicextenCitizens
,
tional protection to commercial speech. See Wuliger, The Constitutional considerable hts of Pia
ery: Commercial Speech and the Cigarette Broadcast Advertising Ban, 36 Fed Co
1, 2 (1984). But see Posadas de Puerto Rico Assocs. v. Tourism Co., 106 S. Ct.' . ; •'
2979-80 (1986) (in upholding statute and regulations restricting advertising of ""
gambling the Court suggested that ban on advertising of harmful products, such
rettes, would not violate first amendment because products themselves may be r,'
56. Whether regulation of liquor advertising in broadcasting or cable is co
with the first amendment is still somewhat unsettled, despite substantial protection
commercial speech. Broadcasters and cable operators challenged an Oklahoma pro ..
tion on television advertising of wine and alcoholic beverages other than beer:
Oklahoma Telecasters Ass'n v. Crisp, 699 F.2d 490, 492-93 (10th Cir. 1983), rev'd
nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). The ban excluded magi
printed outside Oklahoma, but sold or distributed in state. See id. at 493 n. 1. The Teas:
Circuit upheld the ban, in part, because the previous year the Supreme Court had su*,
marily dismissed a case with substantially identical merits. See id. at 497 (relying at:;�
Queensgate Inv. Co. v. Liquor Control Comm'n, 459 U.S. 807 (1982) (dismissin
memorandum for want of substantial federal question). g h.
Only the cablecasters and not the broadcasters petitioned for certiorari. See Capital
Cities, 467 U.S. at 696-97. The Supreme Court reversed, relying on federal preemption,
cablecasting regulation without reaching the first amendment issue. See id. at 715-6,'"
One week later, the Court continued to avoid this issue by declining to review a Fiftb
Circuit upholding a Mississippi law prohibiting the advertising of alcoholic beverages.. ' a
See Dunagin v. City of Oxford, 718 F.2d 738 (5th Cir' 1983) (en banc), cert. denied,
U.S. 1259 (1984). An Oklahoma district court, however, recently found that tbe;
Oklahoma ban on advertising violates the equal protection clause of the fourteen&`_"
amendment by discriminating between in-state and out-of-state advertisers See
Oklahoma Broadcasters v. Crisp, 12 Media L. Rep. (BNA) 2379 (W.D. Okla. 1986). Iii;
the wake of campaigns against drunk driving, there is renewed controversy over the pro..
priety of broadcast or cable advertising of any alcoholic beverages and the use of counter -,',1
advertising messages. See, e.g., Beer -Wine Strategy Moves to Counterads, Broadcasting,,:
May 27, 1985 at 70.
57. In 1971, the Commission admonished broadcasters, under the public interest3
standard, to make reasonable efforts to understand lyrics that allegedly glorify and pro-';;
mote illegal drug use, and to judge the wisdom of airing such music. See Licensee Re►^
sponsibility to Review Records, 28 F.C.C.2d 409 (1971) (pub. notice). The clear impok
of the Notice was that licensees should remove lyrics that offend the Commission from.
programming, or risk sanction. See Yale Broadcasting Co. v. FCC, 414 U.S. 914, 915+1k,
(1973) (Douglas, J, dissenting from denial of certiorari). One Commissioner, however.'';;
called this attitude a blind attack, inspired by the Nixon Administration, on the youth;;
culture, and an "unsuccessfully -disguised effort by the Federal Communications Comp`
mission to censor song lyrics that the majority disapproves of; ... [it was] an unconstitt*
tional action by a Federal agency aimed clearly at controlling the content of speech." Sqe
Licensee Responsibility to Review Records, 28 F.C.C.2d 409, 412 (1971) (Johaso4`�-,
Comm'r, dissenting). The Contn+ission immediately clarified its Notice, stating that d was not attempting to censor any particular record or class of records, with the posa'bk,:-
exception of records creating a "clear and present danger." See Licensee Responsibit
to Review Records, 31 F.C.C.2d 377, 378 (1971). Ea?.
The Court of A }- =
ppeals for the District of Columbia rejected a first amendment c1stl�y;
lenge to the FCC's action. See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 597=99;.•
(D.C. Cir.), cert denied, 414 U.S. 914 (1973). Judge Bazelon, however, sought: suer;;
sponte, a rehearing en banc because he thought that the Commission's action could pe
construed as censorship. He also believed that the case presented the issue whether ttie>
FCC could regulate material that the first amendment would not allow to be regulated,;
es
tie of
.V.esr
Z':
es.• _•
' §``312(1
of t
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1983), rev'er
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:ourt had'. -.. ,
497 (relying' ''''''..
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found tllie
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sy over
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gorify angin.. ,, ,..-
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he clear inf. , t
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t U.S. 91?9 -1 ,
ioner, licili'„, -
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,.,,,i„,.. •
..., .
,
.M.
14,
1987]
THE SIGNAL CABLE SENDS
471
58, .
contests59; sponsorship identification's(); network programming
• .
and prime time access rules61, and children's programmin• g.62
.;;;I:' • "
y„the print media. See id. 478 F.2d at 603-06 (statement of Bazelon, J.). Justice Douglas
answered this question in the negative in his dissent from the denial of certiorari. See
yale Broadcasting Co. V. FCC, 414 U.S. 914, 91647 (1973) (Douglas, J., dissenting from
'denial of certiorari).
The issue of offensive song lyrics is being raised again in the context of sexually explicit
or suggestive material. See infra note 234.
58. A specific criminal statute bans broadcast of lottery information, except for state-
:.
• nm lotteries. See 18 U.S.C. §§ 1304, 1307 (1982); see also Communications Act, 47
U.S.C. §§ 312(a)(6), 312(b), 503(b)(1)(E) (providing sanctions for violation of § 1304);
Broadcast. of Lottery Information, 47 C.F.R. § 73.1211 (1986). The state lottery excep-
tion was added after the Third Circuit reversed an FCC ban on broadcasting a daily
• winning state lottery number. See New Jersey State Lottery Comm'n v. United States,
491 F.2d 219, 222-24 (3d Cir. 1974), vacated, 420 U.S. 371 (1975). The court was trou-
V-. bled by the censorship' aspect of the FCC's ban. It reasoned that such information was
news outside the criminal statute's scope, which it construed as limited to advertising and
_
promotional material. See id. at 223-24. The Supreme Court granted certiorari. See
,
e United States v. New Jersey State Lottery Comm'n, 417 U.S. 907 (1974). After argument
•
• but before decision, Congress enacted 18 U.S.C. § 1307(a)(2) (1982), which exempted
from the ban state lottery advertising and information broadcast in the lottery state or
adjacent lottery states. The Supreme Court, therefore, remanded the case to consider
whether it had become moot. See United States v. New Jersey State Lottery Comm'n,
'Al 420 U.S. 371, 374 (1975) (per curiam). The Third Circuit, however, held that it was not
moot because broadcasts in non -lottery states would still be barred thereby interfering
with the dissemination of news. The court, therefore, reaffirmed its rejection of the
FCC's construction of § 1304. See New Jersey State Lottery Comm'n v. United States,
`;- 34 Rad. Reg. 2d (P&F) 825 (3d Cir. 1975).
59. Stations are allowed to run contests and game shows subject to regulations requir-
ing fairness in the games, disclosure of material terms and non -rigging. See 47 U.S.C.
• § 509 (1982); 47 C.F.R. § 73.1216 (1986); see also Broadcast of Station Contests, 37 Rad.
Reg. 2d (P & F) 260 (1976). These are basically anti -fraud provisions that arose out of
the scandals over rigged quiz shows. See generally S. Head & C. Sterling, supra note 23,
4.; at 209-11 (discussing the quiz show scandals of the 1950's).
60. Similarly, scandals over "payola" and "plugola"; see S. Head & C. Sterling, supra
note 23, at 375-76, led to disclosure requirements for any consideration paid or received
for the broadcast of an advertisement or promotional or political message. See 47 U.S.C.
§§ 317-508 (1982); 47 C.F.R. § 73.1212 (1986); see also Loveday v. FCC, 707 F.2d 1443,
1444 (D.C. Cir. 1983) (upholding FCC requirements that broadcast licensees identify the
sponsors of paid political announcements), cert. denied, 464 U.S. 1008 (1984).
61. The Prime Time Access Rule (PTAR) requires that, subject to certain exceptions,
network affiliates devote at least one of the four daily "prime time" hours to non -net-
work programming. 47 C.F.R. § 73.658(k) (1986); see also Responsibility in Network
▪ Television Broadcasting, 23 F.C.C.2d '382 (1970) (original PTAR); Consideration of
• -
Prime Time Access Rule, 44 F.C.C.2d 1081 (1974) (considering changes or recission of
;.•, rule); Consideration of Prime Time Access gule, 50 F.C.C.2d 829 (1975) (subsequent
. modifications of PTAR). The prime time hours are 7-11 P.M. Eastern and Pacific Time;
640 P.M. Central and Mountain Time. See 47 C.F.R. § 73.658(k) (1986). •
The first version of the PTAR 'was challenged on statutory and constitutional grounds
in Mt. Mansfield Television, Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971). The court held
'that the rules promote the first amendment goal of diversity and rejected an analogy to
newspapers on the basis of the theory developed in Red Lion Broadcasting Co. v. FCC,
C, 395 U.S. 367 (1969), that the peculiar qualifies of each medium must be considered in
applying the first amendment. See M Mansfield, 442 F.2d at 477. Subsequent FCC
action and court opinions have modified these rules while maintaining their basic struc-
ture, though with very mixed results. See National Ass'n of Indep. Television Producers
,
•
472 FORDHAM LAW REVIEW
[Vol. 55 "-
This Article, however, chiefly addresses control over programming
that is potentially offensive as it concerns sexual matters in an arguably
indecent way. In a prophetic passage from its 1960 Programming Policy
Statement, the FCC asserted that the broadcast of nudity, profanity, or
the depiction of sexual activity might raise serious questions, regardless;'
of the propriety of such material in print.63 The Commission based this``:'
distinction on the accessibility of television and radio in the home and to
children.64 Considering the broad context in which the FCC asserts con-
siderable control over program content, one might think that proscribing
sexually indecent broadcast material would be an a fortiori matter for the
Commission. These issues, however, arose for the Commission contem-
poraneously with the Supreme Court's developing obscenity jurispru-
dence. Becoming entangled in that quagmire, the Commission vacillated
as to its proper role. The controversy over indecent broadcast program..
ming, therefore, has a particularly interesting history that is central to an
understanding of Pacifica and the current, parallel dispute over cable
indecency.
:5
and Distribs. v. FCC, 516 F.2d 526, 529-30, 532-35 (2d Cir. 1975); National Ass'n of ..
Indep. Television Producers and Distribs. v. FCC, 502 F.2d 249, 252-53 (2d Cir. 1974).
The Commission also has regulated the networks directly by precluding distribution of
and profit-sharing in domestic syndication of programs and restricting such activities in
foreign markets to wholly network -produced programs. See 47 C.F.R. § 73.658(j)
(1986). These rules have been upheld as " 'reasonably ancillary' " to the FCC's regula-
tion of television broadcasting. See Mt. Mansfield, 442 F.2d at 481-82 (quoting United
States v. Southwestern Cable Co., 392 U.S. 157, 158 (1968)); see also CBS, Inc., 87
F.C.C.2d 30 (1981) (mem. op. & ord.), aff'd sub nom. Viacom Int'1, Inc. v. FCC, 672
F.2d 1034 (2d Cir. 1982). The Commission proposed eliminating or relaxing these finan-
cial interest and syndication rules, see Amendment of Syndication and Financial Interest
Rule, 47 Fed. Reg. 32,959 (1982) (proposed July 3, 1982); Amendment of Syndication
and Financial Interest Rules, 48 Fed. Reg. 38,020 (1983) (to amend 47 C.F.R.
§ 73.658(j)(1)(i) & (ii)) (proposed Aug. 22, 1983), but encountered stiff opposition from
independent film producers and from Congress. See Smith, New Proposals in Syndication
Talks, N.Y. Times, Dec. 22, 1983, at 19, col. 1.
62. For a discussion of children's programming issues, see Winer, supra note 3, at
278-82.
63. See Programming Inquiry, 44 F.C.C. 2303, 2307 (1960). Specifically, the Com-
mission stated:
[R]adio and TV programs enter the home and are readily available not only
to the average normal adult but also to children and to the emotionally imma-
ture.... Thus, for example, while a nudist magazine may be within the protec-
tion of the First Amendment.... the televising of nudes might well raise a
serious question of programming contrary to 18 U.S.C. 1464.... Similarly,
regardless of whether the "4 -letter words" and sexual description set forth in
'lady Chatterley's Lover',[sic] (when considered in the context of the whole
book) make the book obscene for mailability purposes, the utterance of such
words or the depiction of such sexual activity on radio or TV would raise simi-
lar public interest and Section 1464 questions.
Id.
64. See infra notes 87-91 & 320-25.
87
1'
Len
c
ane,
ust
•
ea
over pro '`'.„„.
ters in iii
g .
dity, .
leSt10 s, r`�
r
,missjoli , a a i:,
n the home
'
i
s .
,
FCC isert,
Lk that pr c
iori
matt
fnmission con
bscenity Cll.'?
mission v: i1
•oadcast pro a�':`' ,
tat is central tp' '
ispute over :..: ►
5); National ;Ass'
i2-53 (2d Cir.`197"
tuding distrirtion ,
ing such actnitiL
' C.F.R.
to the FCC's;
!-82 (quoting
also CBS, i }" .
'1, Inc. v. F e: ' s.
relaxing these`
rd Financial .
ment of S
amend 47 f'C.
;tiff opposition;
;osals in
er, supra note
7�
,
ecifically,
liable notwoi
tionally ima
hin the proteo
it well isisG.
Similarly
)n set foith$'
of the- iv1role
:range 'oft
ritelt
uld raise
vu,
e,_
a
1987]
9_, THE SIGNAL CABLE SENDS 473
B: Control Over Sexually Explicit Broadcast Programming
1. Development of Obscenity and Indecency Jurisprudence
To appreciate the treatment of indecency in broadcasting by the Com-
ic; :
IDission and the courts, it is necessary to keep in mind the underlying
;development of judicial approaches to obscene and indecent expression.
Applying .this background to the broadcasting context, one can argue
that it should have been fairly easy for a majority of the Court in Pacifica.
to repudiate the FCC's heavy-handed sanction of that broadcast.
!4At about the same time that the FCC began to deal with particular
,incidents of alleged broadcast indecency, the Supreme Court first ruled,65
'in Roth v. United States,66 that obscenity is not entitled to. first a.mend-
;•. `went protection and thus began its long, continuing struggle to define
obscenity.67 Nine years later in Memoirs v. Massachusetts,68 the Court
Y:attempted to refine the concept of obscenity. The result was so unsatis-
factory69 that, between 1967 and 1973, the Court rendered at least thirty-
one per curiam reversals of obscenity convictions whenever at least five
''Justices, applying their separate tests, found the material not obscene.70
65. Ginsberg v. New York, 390 U.S. 629, 653-54 n.4 (1968) (Douglas, Black, JJ.,
`dissenting).
66. 354 U.S. 476 (1957). In the "fighting words" case of Chaplinsky v. New Hemp -
h, shire, 315 U.S. 568 (1942), however, the Court, in dictum, described the "lewd and ob-
r scene" as one of four categories of expression not entitled to first amendment protection.
See id. at 571-72.
67. The lexicon of obscenity includes many variants such as "pornography" (hard- or
soft -core), "filthy" or "dirty" expression, "indecency" and the like. Putting aside meta-
phorical implications of such variants, this Article reserves the term "obscenity" to de-
scribe that content or manner of expression that meets whatever legal test is in vogue for
r=' -denying full first amendment protection. Even so, with its preoccupation with sex and
excretion, see infra note 72, legal obscenity seems to overlap only partially with what
could be considered obscene in the true, broad meaning of that word—"disgusting to the
• senses" or "grossly repugnant to the generally accepted notions of what is appropriate."
Webster's Third New International Dictionary 1557 (5th ed. 1981). See Miller v. Califor-
nia, 413 U.S. 15, 18-19 n.2(1973); see also in
fig note 328. Perhaps this is why questions
of obscenity have produced "a variety of views among the members of the Court un-
matched in any other cause of constitutional adjudication." Interstate Circuit, Inc. v.
City of Dallas, 390 U.S. 676, 704-05 (1968) (citation omitted) (Harlan, J., concurring in
};= part, dissenting in part). See Paris Adult Theater I v. Slaton, 413 U.S. 49, 73 (1973)
(Brennan, J., dissenting) ("No other aspect of the First Amendment has, in recent years,
demanded so substantial a commitment of our time, generated so much disharmony of.
views, and remained so resistant to the formulation of stable and manageable
standards.").
68. 383 U.S. 413 (1966).
69. The Roth test for obscenity was "whether to the average person, applying contem-
x , Pommy community standards, the dominant theme of the material taken as a whole ap-
' peals to prurient interest." Roth v. United States, 354 U.S. 476, 489 (1957) (footnote
,;i;; omitted). Memoirs added two requirements to the dominant appeal to prurient interest.
-First, the material must be "patently offensive because it affronts contemporary commu-
nity standards relating to the description or representation of sexual matters." Second, a
court must find. that "the material is utterly without redeeming social value." Memoirs,
383 U.S. at 418.
70. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82 n.8 (1973) (Brennan, J.,
dissenting).
`
4
•
-r
;;S
474 FORDHAM LAW REVIEW
[Vol. 55
Finally, in Miller v. California" and four other cases decided the same
day, a 5-4 majority announced the Court's current tripartite definition of
obscenity.'
Thus, while the FCC and lower courts were dealing with broadcast
indecency, they were guided by the Supreme Court's position that ob-
scenity is outside the protection of the first amendment and by its chang-
ing, abstract test for obscenity, which the Court itself had great difficulty
applying. Yet, in most of the broadcasting cases, the FCC purported to
act against material that was offensive or indecent, not against obscene
material.73 Several other trends, therefore, that the Court developed in
dealing with indecent expression are arguably more relevant.
First, the Court has maintained a fairly strict dichotomy between un-
protected obscenity and all other expression, which is protected.74 It.
71. 413 U.S. 15 (1973).
72. The Miller test asks:
(a) [W]hether 'the average person applying contemporary community stan-
dards' would find that the work, taken as a whole, appeals to the prurient inter-
est; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic, political or scientific
value. -
Miller, 413 U.S. at 24 (citation omitted). The other four cases are: United States v.
Orito, 413 U.S. 139 (1973); United States v. 12 200 -ft. Reels of Super 8mm Fihn, 413 U.S.
123 (1973); Kaplan v. California , 413 U.S. 115 (1973); and Paris Adult Theater I v.
Slaton, 413 U.S. 49 (1973). In a few examples, the Court tried to indicate the sort of
offensive representations or descriptions of sexual or excretory matters with which it was
concerned. See Miller, 413 U.S. at 25-26; see also infra note 165.
73. See infra Part I.B.2
74. The Supreme Court has gradually eroded such a two-tiered approach for other
categories of expression once not entitled to first amendment protection. See Valentine v.
Chrestensen, 316 U.S. 52, 55 (1942) (commercial speech not protected by first amend-
ment); Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (the "lewd and obscene,
the profane, the libelous, and the insulting or 'fighting' words" are outside the first
amendment's protection). Thus, labeling certain expression as libel, profanity, fighting
words, or commercial speech will no longer automatically preclude first amendment ap-
plication. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557,
561-66 (1980) (granting commercial speech substantial first amendment protection); Vir-
ginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
761-70 (1976) (same); Lewis v. City of New Orleans, 415 U.S. 130, 133-34 (1974) (state
statute prohibiting use of "obscene or opprobrious language" void for overbreadth);
Gooding v. Wilson, 405 U.S. 519-20 (1972) (state statute proscribing fighting words oid
on its face); New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) ("[L]ibel can
claim no talismanic immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment."); Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 506 (1952) (state cannot bar films deemed "sacrilegious"). See generally Krat-
tenmaker & Powe, Televised Violence: First Amendment Principles and Social Science
Theory, 64 Va. L. Rev. 1123, 1178-91 (1978) (describing the two-tier approach and its
considerable decline).
In Stanley v. Georgia, 394 U.S. 557 (1969), the Court took obscenity one step in the
same direction by holding that an individual may not be criminally prosecuted for pos-
sessing and viewing obscene material in his own home. See id. at 568. The Court, how-
ever, has shown no inclination to extend further protection for obscenity. See United
States v. 12 200 -ft. Reels of Super 8mm Film, 413 U.S. 123, 125-28 (1973) (declining to
1,
1987] THJ
erefore takes a permiss
i"pression, even when infli
California,75 for example
mg the words "Fuckath
ere women and childrt
jacket eliminated any qu
state .could not proscri
-HTY�y,
arlan's words, "one ma
fate has no right to dm
'inatically palatable to th
The next year, a divic
involving indecent langu
dight of Cohen and Goo
rY57.a ,
extend Stanley to importation
Supreme Court, however, has
[c]haracterizing expres
'g; or otherwise, does
tution.... In this state
anything to a consenting ;
universally considered "c
State v. Henry, 302 Or. 510,
x,75. 403 U.S. 15 (1971).
76. Id. at 16. Cohen testif
feelings against the Vietnam
apolitical speech. Id.
- - 77. See id: at 25-26.
78. Id. at 25.
79. The three cases are: R
appellant was convicted unde
.public places that either might
rage and gender of the listeners
;hearer.' " Id. at 904 (Powell,
166 A.2d 579, 583-84 (1970)):
children, appellant on four occ
'm= Id.; Lewis v. City of N
iting the use of "obscene or op
a '`mother who called police o
Rosenfeld, 408 U.S. at 909-10
914f(1972), in which Brown v
Word[s] in any public place, o
91%1: ehn uist, J., dissenting)
alS,R `.'m f—fascist
''8.U.S. at 911.
Chief Justice Burger and Ji
ted is each of these cases, a
SJustice Powell, who also
ncuired in the results in Le,
the eonviiction simply was rev
Orl Weans, 415 U.S. 130, 131 (15
mer; three dissenters continu
80:405 U.S. 518 (1972).
^rgta statute proscribing "c
;. ;h of the peace." See id.
cketec:exclaimed, "'White s
- '4
[Vol:.
. the sauni
;finition
broad
I that'o�'
its chang
difficulty.
Torted tp
it obscene
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987]
THE SIGNAL CABLE SENDS 475
-:.;,,therefore takes a permissive attitude toward offensive but nonobscene ex -
;pression, even when inflicted in public on those who object. In Cohen v.
? ,cilifornia,75 for example, Cohen was convicted for wearing a jacket bear-
'', mg the words "Fuck the Draft" in a courthouse corridor where there
7:::
tr, were women and children.76 The lack of any erotic content to Co en's
;'; jacket eliminated any question of obscenity, and the Court held that the
; state could not proscribe its nonobscene offensiveness." In Justice
;; .Harlan's words, "one man's vulgarity [often] is another's lyric," and "the
State has no right to cleanse public debate to the point where it is gram-
- .. matically palatable to the most squeamish among us.
The next year, a divided Court vacated and remanded three cases,79
involving indecent language and "fighting words," for reconsideration in
light of Cohen and Gooding v. Wilson, 80 a "fighting words" case the
extend Stanley to importation of obscene material for private, personal use). The Oregon
Supreme Court, however, has held that:
[c]haracterizing expression as "obscenity" under any definition, be it Roth,
Miller, or otherwise, does not deprive it of protection under the Oregon Consti-
tution.... In this state any person can write, print, read, say, show or sell
anything to a consenting adult even though that expression may be generally or
universally considered "obscene."
State v. Henry, 302 Or. 510, 525, 732 P.2d 9, 17-18 (1987).
75. 403 U.S. 15 (1971).
76. Id. at 16. Cohen testified that his jacket was intended to express the depth of his
feelings against the Vietnam War and the draft, thereby giving the case overtones of
political speech. Id.
77. See id. at 25-26.
78. Id. at 25.
79. The three cases are: Rosenfeld v. New Jersey, 408 U.S. 901 (1972), in which the
appellant was convicted under a statute prohibiting indecent and offensive language in
public places that either might incite an immediate breach of the peace or, in light of the
age and gender of the listeners and the setting, was likely " `to affect the sensibilities of a
hearer.' " Id. at 904 (Powell, J., dissenting) (quoting State v. Profaci, 56 N.J. 346, 353,
266 A.2d 579, 583-84 (1970)). At a school board meeting in the presence of women and
children, appellant on four occasions referred to school and town officials as "m— f-
-." Id.; Lewis v. City of New Orleans, 408 U.S. 913 (1972), in which a statute prohib-
iting the use of "obscene or opprobrious language" to a policeman on duty was applied to
a mother who called police officers arresting her son "g— d— m— f— police."
Rosenfeld, 408 U.S. at 909-10 (Rehnquist, J., dissenting); Brown v. Oklahoma, 408 U.S.
914 (1972), in which Brown was convicted of using " `obscene or lascivious language or
word[s] in any public place, or in the presence of females.' " See Rosenfeld, 408 U.S. at
911 (Rehnquist, J., dissenting). At a meeting in a university chapel, he referred to police-
men as "m— f— fascist pig cops" and "black m— f— pig." See Rosenfeld,
408 U.S. at 911.
Chief Justice Burger and Justice Blackmun, who had dissented in Gooding, also dis-
sented in each of these cases, as did Justice Rehnquist, who had not participated in Good-
ing. Justice Powell, who also did not participate in Gooding, dissented in Rosenfeld but
concurred in the results in Lewis and Brown. When Lewis returned to the Court in 1974,
the conviction simply was reversed on overbreadth grounds. See Lewis v. City of New
Orleans, 415 U.S. 130,'131 (1974). Justice Powell concurred in this disposition while the
other three dissenters continued to object.
80. 405 U.S. 518 (1972). Gooding involved an anti -war picketer convicted under a
Georgia statute proscribing "opprobrious words or abusive language, tending to cause a
breach of the peace." See id. at 519. In the course of struggling with policemen the
picketer exclaimed, " `White son of a bitch, I'll kill you.... You son of a bitch, if you
1
476 FORDHAM LAW REVIEW [Vol. 55
Court had decided. The Court's approach of adhering to a strict and
narrow definition of obscenity81 and tolerating all other offensive expres-
sion, even if indecent and public,82 was later confirmed in Erznoznik v.
City of Jacksonville.83
In Erznoznik, the managerof a drive-in movie theater was charged
with violating a municipal ordinance against exhibiting a motion picture
containing human nudity visible from any public street or place. The
movie screen was visible from two adjacent streets and a nearby church
parking lot. Although the ordinance clearly restricted material that was
not obscene, the city claimed it could enforce it to supress a nuisance as a
legitimate exercise of the police power. The Supreme Court, however,
invalidated the ordinance, rejecting the City's arguments that its action
"was permissible either to protect its citizens in general against "unwilling
exposure to materials that may be offensive" or to protect children.84
Rather, the Court held that unwilling adult viewers could avert their
eyes,85 and that the ordinance was overbroad as to children because not
all nudity can be deemed obscene as to minors.86
Contrary to this permissive trend, and perhaps indicative of the unset-
tled positions toward obscenity among the Justices, the Court, in parallel
developments, began reducing protection for indecent but nonobscene
expression in special circumstances. In Ginsberg v. New York,87 for exam-
ple, the Court employed "variable concepts of obscenity" to reject a fa-
cial challenge to a New York statute making it a crime to sell directly to
minors under seventeen material that is obscene as to them — that is,
material "harmful to minors.'88 The Court thus adjusted the definition
ever put your hands on me again I'll cut you all to pieces.' " Id. at 519, n.1 (quoting from
the indictment as set out in Wilson v. State, 223 Ga. 531, 534, 156 S.E.2d 446, 449
(1967)). The Court voided the statute on its face as overbroad and affirmed the federal
district court's reversal of the conviction. See id. at 528.
81. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 499-501 (1985) (state
obscenity statute invalid insofar as it defines "prurience" in terms of "lust"); Jenkins v.
Georgia, 418 U.S. 153, 161 (1974) (the film Carnal Knowledge not obscene based on the
Court's own viewing of the film).
82. See, e.g., Eaton v. City of Tulsa, 415 U.S. 697, 699 (1974) (per curiam) (use of
language "chicken shit" in courtroom testimony could not sustain a conviction for crimi-
nal contempt for insolent behavior in court.); Hess v. Indiana, 414 U.S. 105, 107-08
(1973) (person who during a campus antiwar demonstration shouted, "We'll take the
fucking street later (or again)" could not be charged under a disorderly conduct statute
because this language was neither obscene, nor "fighting words," nor incitement of immi-
nent lawlessness); Papish v. Board of Curators, 410 U.S. 667, 667, 671 (1973) (per
curiam) (graduate student at state university, who was expelled for using the expression
"m— f " in a publication to be distributed on campus, ordered reinstated),
Again Justice Rehnquist, joined by the Chief Justice and Justice Blackmun, dissented in•_;;
each case. See Eaton, 415 U.S. at 701; Hess 414 U.S. at 109; Papish,.410 U.S. at 673.
83. 422 U.S. 205, 209 (1975).
84. Id. at 208, 212.
85. See id. at 211.
86. See id. at 213.
87. 390 U.S. 629 (1968). ;4
88. Id. at 631-33. That Ginsberg is_limited to distribution specifically aimed at mints;`;
1987]
of obscc
Court u
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puld avert their
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2ourt, in parallel:
but nonobscene'
York, 87 for exam'`.
r" to reject a fa
o sell directly.t
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:d the definitions"'
I, n.1 (quoting from:.
;6 S.E.2d 446, 44914
fffirmed the federal,;,'
9-501 (1985) (state'
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v:�
scene based on the
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nviction for crimi
U.S. 105, 107-08>
1, "We'll take big
ly conduct statute
citement of immi•
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mun, dissented in,_.
410 U.S. at 673:fe
`rr
• aimed at minors
ori
THE SIGNAL CABLE SENDS
477
of obscenity to what it called "social realities."89 Consequently, the
Court upheld regulation of material even though it did not meet the cur-
rent obscenity standards for adults.9° The Court recently extended its
particular concern for children by unanimously holding in New York v
Ferber9 that child pornography is not entitled to first amendment
.protection.92
Similarily, in Ginzburg v. United States,93 a divided Court upheld a
conviction based on material that was not itself obscene. In considering
an alleged violation of a federal obscenity statute for mailing "nonmail-
able" material, the Court ruled that the "question of obscenity may in-
clude consideration of the setting in which the publications were
presented."94 Thus, "pandering" by " `purveying textual or graphic mat-
ter openly advertised to appeal to the erotic interest,' " the " leer of the
sensualist,' " and "a background of commercial exploitation of erotica
solely for the sake of their prurient appeal,"95 could convert otherwise
nonobscene material into proscribable obscenity. Despite objections from
dissenters, who question how such alchemy can be achieved by truthful
advertising, particularly in light of increased protection for commercial
speech, the Court has continued to apply this pandering concept, at least
in close cases.96
Finally, several Justices have developed a troublesome doctrine that
potentially would allow broad regulation of indecent or offensive, but
nonobscene, speech based upon the purported lack of value of such ex -
is clear from its egregious facts. A sixteen year old boy was enlisted by his mother to
purchase two "girlie" magazines from a "mom-and-pop" luncheonette so that the owners
could be prosecuted. Id. at 671-72. (Fortas, J., dissenting).
The Court adopted the concept of variable obscenity from a New York state case stat-
ing that "the concept of obscenity or of unprotected matter may vary according to the
group to whom the questionable material is directed or from whom it is quarantined."
Id. at 636 (quoting Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 75, 218 N.E.2d 668, 671,
271 N.Y.S.2d 947, 952, appeal dismissed sub nom. Bookcase, Inc. v. Leary, 385 U.S. 12
(1966)). See Lockhart & McClure, Censorship of Obscenity: The Developing Constitu-
tional Standards, 45 Minn. L. Rev. 5, 85 (1960) ("Variable obscenity ... furnishes a
useful analytical tool for dealing with the problem of denying adolescents access to mate-
rial aimed at a primary audience of sexually mature adults.").
89. See Ginsberg, 390 U.S. at 638.
90. The statutory test for "harmful to minors" was based on the obscenity standards
in Roth v. United States, 354 U.S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S.
413 (1966), as applied to an audience of minors. See Ginsberg at 635-36. But the
magazines were not obscene for adults, see id. at 634, and the Court avoided deciding
whether they were obscene for youths under seventeen because plaintiff challenged the
New York statute on its face and did not dispute the finding of obscenity. See id. at 636.
91. 458 U.S. 747 (1982); see also infra note 107.
92. See id. at 773-74.
93. 383 U.S. 463 (1966).
94. Id. at 465 (quoting in part Roth v. United States, 354 U.S. 476, 495-96 (1957)).
95. Id. at 467-68. Defendant, for example, had sought for his magazine mailing privi-
leges from the postmasters of the towns of Intercourse and Blue Ball, Pennsylvania. Id.
at 467.
96. See Pinkus v. United States, 436 U.S. 293, 303-04 (1978); Splawn v. California,
431 U.S. 595, 598-601 (1977).
01
478 FORDHAM LAW REVIEW [Vol. 55
pression. This sliding scale of first amendment protection, which de-
pends on the Justices' value judgments, originated from dicta in Justice
Stevens' plurality opinion in Young v. American Mini Theaters.97 In that
case, the Court upheld, against a vagueness attack, local ordinances that ..
restricted where adult movie theaters could operate. A bare majority
dismissed as insignificant the ordinances' possible deterrence of showing
films protected by the first amendment. The Court, further, was not ..
overly concerned about doubtful cases because "there is surely a less vital
interest in the uninhibited exhibition of material that is on the borderline
between pornography and artistic expression than in the free dissemina-
tion of ideas of social and political significance."98
In a latter part of his opinion, joined only by the Chief Justice and
Justices White and Rehnquist, Justice Stevens defended the content -
based zoning restraint. He reasoned that, although erotic materials with
some arguably artistic value could not be suppressed entirely under the
first amendment,99 "it is manifest that society's interest in protecting this
type of expression is of a wholly different, and lesser, magnitude than the
interest in untrammeled political debate."100 Justice Stevens, however,
cited neither legal nor empirical evidence to support these propositions
that he claimed were "surely" true and "manifest." Moreover, each
proposition can be read as asserting only the familiar notion of a "central
meaning of the First Amendment" 101 revolving around political speech
necessary for a self-governing, democratic society, arid that all other ex-
pression pales in importance, though not necessarily in first amendment
protection.102 Indeed, the four dissenting Justices in Young character -
97. 427 U.S. 50 (1976).
98. Id. at 61. Justice Powell, who joined this part of Stevens' opinion, nonetheless
disassociated himself from these remarks. See id. at 73 n.1 (Powell, J., concurring). See
infra note 104.
99. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71 n.10 (1981).
100. Young, 427 U.S. at 70. But see American Booksellers Assoc., Inc. v. Hudnut, 771
F.2d 323, 331 (7th Cir. 1985) (pornography, which influences social relations and politics
on a grand scale and controls attitudes, as such is not "low value" speech), aff'd mem.,
106 S. Ct. 1172 (1986).
101. New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
102. Compare A. Meiklejohn, Free Speech and Its Relation to Self -Government (1948),
in Political Freedom (1965) at 24-27 (suggesting a narrow scope to "political speech"
entitled to first amendment protection) with Meiklejohn, The First Amendment is an Ab-
solute,
1961 Sup. Ct. Rev. 245, 255-57 (1961) (full protection of the first amendment
extends over a wide range of "human communictions from which the voter derives the
knowledge, intelligence, sensitivity to human values"). But see A. Bickel, The Morality
of Consent, 62-63 (1976) (first amendment should protect speech that serves to make the
political process work, but not speech that undermines... that process or constitutes a
breach of an otherwise valid law); BeVier, The First Amendment and Political Speech: An"_.%
Inquiry into the Substance and Limits of Principle, 30 Stan. L. Rev. 299, 302, 304-22--
(1978) (first amendment protects political speech—"speech that participates in the
processes of democracy" but does not protect non-political speech or anti -democratic ;`.
speech); Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, .
20-35 (1971) (only speech that is explicitly political and, in addition, does not advocate;.,
forcible overthrow of the government or violation of any law should be constitutionally.•
protected). See generally Redish, The Value of Free Speech, in Freedom of Expression 1=
as
,;19$7]
.".•1
the Cot
the obje
tutiona
+Justice Ste
f:» -h to de
gin.
:41pted to
i
Ibis, how
3' - 'quest an
wasjast squa
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a
'(1984) (discu
L„ -ion to be giv
03. Young v
, Black
Ct:'"925, 929-3i
ing4ordinance re
Dine was not a;
the; theaters on t
•104. "The fac
'S-
of social a;
itis,less worthy
"hall, Black/
,opinion, also dist.
differently under
d. at 73 n.1 (Pc
105. See New
106. See, e.g.,:
(
J=peecsh is more NI
U.S: at 781 (Ste
a, 107. See FCC
ecOi,eurring); id.
, White,
ysis on statu
' y Greenmoss Build
• grazed that
The Court's ui
pornography unp
:scale approach. C
:approach did •
► the Courtn
t,' Anent, criticiz
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‘.(Brennan, Mai
'rte, •mss view than the
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'ver, Ferb
,Court m
and oapIoitationakes c
* ow states to int
Itself it is nom
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Court suggested t:
•
60,
of
V-
otection, which`f
rom dicta in Justice'
i Theaters.97 .In`tlat"
pcal ordinances tlat^;
:e. A bare majority;
:terrence of showing
rt, further, was a it " •
e is surely a less viial
t is on the borderline':`•
1 the free dissemina +i
ae Chief Justice milt
:fended the content*,
t:
erotic materials with,:'
:d entirely under the
rest in protecting thia'•
magnitude than the " r;
ce Stevens, however, 4`=tY
art these propositions
st." Moreover, each;
.r notion of a “central;
ound political speechl
and that all other ex -r:+
ly in first amendment:i.,,!
in Young character,,,;:
to
yens' opinion, nonetheless r'*
owell, J., concurring). See
1, 71 n.10 (1981).
1ssoc., Inc. v. Hudnut, 771 ' r;
social relations and politics'
+slue" speech), afJ'd
(1964).
to Self -Government (1948)
;cope to "political speech"
First Amendment is an Ab -
on of the first amendment;;
which the voter derives the;;;,"
.ee A. Bickel, The Morality P:
ech that serves to make the `;‘'..
at process or constitutes
ent and Political Speech: An ?g
L. Rev. 299, 302, 304-22'x.!.
:h that participates in the;;;;.:
1 speech or anti -democratic
nt Problems, 47 Ind. L.J. 1, r, - 1
addition, does not advocate '1
w should be constitutionally sr�
in Freedom of Expression 1 ),1\ ; y
19871 THE SIGNAL CABLE SENDS 479
ized the Court's opinion as an "aberration,sm3 and specifically denied
that the objectionable nature of the films diminished in any way their
constitutionally protected status.1O4
Justice Stevens has held tenaciously to this sliding scale valuation of
speech to determine its constitutional protection.1O5 He has repeatedly
attempted to portray a majority of his colleagues as agreeing with him.lo6
He has, however, been able to rely in. this regard only on Chief .Justice
Rehnquist and former Chief Justice Burger. In Pacifica, when this issue
was last squarely addressed, all the other Justices either specifically dis-
avowed the sliding scale approach or ignored it.'°7
86 (1984) (discussing the values free speech serves and the consequent constitutional pro-
tection to be given various forms of expression).
103. Young v. American Mini Theaters, 427 U.S. 50, 87 (1976) (Stewart, Brennan,
Marshall, Blackmun, JJ., dissenting). But see Renton v. Playtime Theatres, Inc., 106
S.Ct. 925, 929-30 (1986), (invoking Stevens' plurality opinion in Young to uphold a zon-
ing ordinance restricting the locations of adult movie theaters by finding that the ordi-
nance was not aimed at the content of the films shown but at the "secondary effects" of
the theaters on the community).
104. "The fact that the `offensive' speech here may not address `important' topics—
`ideas of social and political significance,' in the Court's terminology—does not mean,,that
it is less worthy of constitutional protection." Young, 427 U.S. at 87 (Stewart, Brennan,
Marshall, Blackmun, JJ., dissenting). Justice Powell, concurring in part of the Court's
opinion, also disagreed with the notion "that nonobscene, erotic materials may be treated
differently under First Amendment principles from other forms of protected expression."
Id. at 73 n.1 (Powell, J., concurring).
105. See New York v. Ferber, 458 U.S. 747, 781 n.5 (1982) (Stevens, J., concurring).
106. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 412 n.4 (1984) (Stevens,
J., dissenting) ("[O]nce again the Court embraces the obvious proposition that some
speech is more worthy of protection than other speech") (emphasis added); Ferber, 458
U.S. at 781 (Stevens, J., concurring in judgment) ("[t]oday the Court accepts [my]
view").
107. See FCC v. Pacifica Found., 438 U.S. 726, 761 (1978) (Powell, Blackmun, JJ.,
concurring); id. at 762-63 (Brennan, Marshall, JJ., dissenting); id. at 777-80 (Stewart,
Brennan, White, Marshall, JJ., dissenting) (ignoring sliding scale approach and basing
analysis on statutory construction of "indecent"). But see Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 758 & n.5 (1985) (Powell, J.) ("We have long
recognized that not all speech is of equal First Amendment importance.").
The Court's unanimity in New York v. Ferber, 458 U.S. 747 (1982), holding child
pornography unprotected does not contradict the majority's disavowal of Stevens' sliding
scale approach. Certainly those Justices who steadfastly and explicitly have opposed such
an approach did not abandon that position sotto voce in Ferber. In fact, only 5 Justices
joined the Court's opinion in Ferber. Further, Brennan and Marshall, concurring in the
judgment, criticized the majority for labelling all materials affected by New York's child
pornography statute as of de minimis first amendment value. See Ferber, 458 U.S. at 776-
77 (Brennan, Marshall, JJ., concurring). Even Justice Stevens disagreed with the major-
ity's view that the entire category of speech described in the statute is totally without first
amendment protection. See id. at 781 (Stevens, J., concurring).
Moreover, Ferber should be viewed as a "conduct" case rather than a "speech" case.
The Court makes clear that the New York statute at issue is aimed at the sexual abuse
and exploitation of children. See id. at 759-60. On that basis, the Court will presumably
allow states to interdict child pornography as the end product of such activities, even if
by itself it is nonobscene expression, because .the Court was persuaded that this maybe
the only practical way to attack the underlying problem. See id. at 759-62. Moreover, the
Court suggested that simulation of child pornography by young -looking persons over the
.41
ri
3)
480 FORDHAM LAW REVIEW [Vol. 55
Thus, when Pacifica reached the Supreme Court, the Court had an
established, if not unanimous, approach to obscenity that easily pre-
cluded a finding that the Carlin monologue at issue was obscene. And,
there was ample authority for affording first amendment protection to
virtually all nonobscene expression, even if offensive, indecent, and pub-
lic. The pandering element of Ginzburg v. United States,1O$ was not rele-
vant in Pacifica, and the broadcast did not involve specific distribution
directed to minors as in Ginsberg v. New York.1O9 Finally, the sliding
scale approach enjoyed the firm support of only three Justices.
Pacifica, then, should have garnered a majority of the Court to reject
FCC sanction of the broadcast. Pacifica, however, arose in the context of
broadcasting, and this factor made all the difference. To appreciate why
this was so, and how the Court inappropriately adapted the facts and
casually relied on its own as well as administrative precedents, it is neces-
sary to look at the colorful, but tentative, background of FCC regulation
of indecency in broadcast programming.
2. Regulation of Broadcast Indecency
Specific instances of allegedly indecent language on radio did not be-
come a significant problem for the Commission until the mid -1950's.11°
At that time, it first considered indecent programming as one factor in
determining the award of a new commercial television license between
two competing radio stations.' 11 One station had broadcast certain re-
corded songs "in less than good taste" with some language that conveyed
"a double meaning in its suggestive content" or was. "vulgar."112 The
station objected to the finding of a lack of good taste. Moreover, it had
the temerity to argue that, in fulfilling its role as an outlet for local self-
expression, it had to consider minority groups, as well as majority tastes,
to provide balanced programming. This challenge to the Commission's
authority failed. The Commission rejected the idea that it was barred
statutory age would be outside the reach of the statute, thereby demonstrating that it was
more concerned with protecting children from being used in the underlying activity than
with the resulting expression. See id. at 763. Further, the Court strained to note that
child pornography that is not obscene retains first amendment protection if it does not
involve live performances or visual reproduction thereof. Thus, for example, written de-
pictions of children engaged in sexual activity, created without the actual use of children,
remain protected. See id. at 764-65.
108. 383 U.S. 463 (1966). See supra notes 93-96 and accompanying text.
109. 390 U.S. 629 (1968). See supra notes 87-92 and accompanying text.
110. Nevertheless, prior to the 1950's, the FRC denied renewal to some licensees be-
cause of specific broadcast language that was obscene, indecent or otherwise deemed not
in the public interest. See Norman Baker (station KTNT) v. FRC, 5th\FRC Ann. Rep.
78 (1931), notice of dismissal, 6th FRC Ann. Rep. 22 (1932); William B Schaeffer
(KVEP) v. FRC, 4th FRC Ann. Rep. 46 (1930), notice of dismissal, 5th FRC Ann. Rep.
73 (1931); see also Wolfe, Norman Baker and KTNT, 12 J. Broadcasting 389 (1968) (his-
tory of Norman Baker's controversial broadcasting career and his on -air promotion of a
cure for cancer). See supra note 24.
111. See WREC Broadcasting Serv. & WMPS v. FCC, 19 F.C.C. 1082, 1106 (1955).
112. Id. The Commission cited no examples.
q•
198
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offending ma
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o'one annou
16. See RA
117. Mile
,118. This f.
;language by r
•pnsoned not
,;Such a pro
Radio Act an
byy the 1948
States, 366 F.:
645, 62 Stat.
' iation of, §
license revoca
msposing sant
g, le
Efen cable
. See
• J ; rn § 14t
comnmunicatio
t8g; signals,
the described
°;bythe statute.
- ?Ott; Assistai
,ourt had,
it easily ke.
'scene. And;
protections.
ent, and pub-
was not rile-
::
distributiT .
y, the sliding
ices.
Burt to reject
the context o�
?predate why
the facts and-
its, it is neces
7.0 regulation
io did not be`;1,
mid -1950's.' 19,1
one factor in
;ense between;;
sst certain re -;t
that conveyed
lgar."112 The';,:
weaver, it had,'}5,
for local self-..`:
iajority tastes;
Commission's
it was barred
:rating that it was
ying activity than
ined to note that
ion if it does not
ample, written de-
al use of children,
; text.
; text.
,ome licensees be- ,K
rwise deemed not
1 FRC Ann. Rep.
ham E. Schaeffer
h FRC Ann. Rep.
ig 389 (1968) (his -
Lir promotion of a
.082, 1106 (1955).
1987]
THE SIGNAL CABLE SENDS
481
from examining programs "pander[ing] to any taste, however low,"113
and awarded the new license to the other applicant.
This first confrontation over indecent language arose over the Com-
mission's award of a new license to one of two competing applicants.
This decision was committed to the Commission's discretion and, there-
fore, difficult to challenge. Nevertheless, the possible consequences of
challenging the Commission's authority over indecent programming was
not lost on licensees. In Mile High Stations, Inc. v. FCC,'" the radio
station agreed to accept a cease and desist order in lieu of revocation
proceedings as a result of its broadcast, over several weeks, of certain
offensive remarks and sound effects.115 The Commission specifically
based its authority to sanction the station on its finding that the language
broadcast did not serve the public interest. It dismissed section 326, the
anticensorship provision of the Communications Act,116 t6 finding no pro-
tection for the sort of remarks at issue."'
1'
Licensees, however, soon began to challenge the Commission, particu-
larly when it purported to act pursuant to 18 U.S.C. § 1464, a federal
statute prohibiting "obscene, indecent, or profane language" in the me-
dium of "radio communication.»118 In the Palmetto Broadcasting Co.119
113. Id. at 1113.
114. 28 F.C.C. 795 (1960).
115. See id. at 796-97. In an Appendix, the Commission gave some examples of the
offending material, which included mildly suggestive comments by an announcer, poor
jokes such as, "[D]id you hear about the guy who goosed the ghost, and got a handful of
sheet," sound effects of a toilet being flushed, and on -the -air telephone conversations be-
tween the announcer and college or junior high school female students. See id. at 798.
The Commission found it "especially deplorable" that the remarks in question, "offensive
in any context," occurred on programs that included young people. See id. at 796. The
station president admitted the poor taste in broadcasting the remarks but attributed them
to one announcer who had violated station policy and had been fired. See id.
116. See supra note 19.
117. Mile High Stations, 28 F.C.C. at 796-97.
118. This section reads in full: "Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be fined not more than $10,000 or im-
prisoned not more than two years, or both." 18 U.S.C. § 1464 (1982).
Such a prohibition originally was par. of the anticensorship provisions -4 29 of the
Radio Act and § 326 of the Communications Act—but was moved to the criminal code
by the 1948 general recodification of federal criminal law. See Gagliardo v. United
States, 366 F.2d 720, 723 (9th Cir. 1966); Pub. L. No. 772, 80th Cong. 2d Sess. 1948, ch.
645, 62 Stat. 769. Nonetheless, the Communications Act retains several sanctions for
violation of § 1464 such as fines, see 47 U.S.C. § 503(b) (1982 & Supp. III 1985), and
license revocation, 47 U.S.C. § 312(a) (6) (1982). This raises the issue of a federal agency
imposing sanctions for the alleged violation of a criminal statute without any criminal
proceeding, let alone a conviction. See infra note 191.
Even cable is now subject to statutory restrictions on obscene, indecent, and profane
material. See infra notes 261-81 and accompanying text. Further, "radio communica-
tion" in § 1464 probably includes television. See 47 U.S.C. § 153(b) (1982) (" `Radio
communication' or 'communication by radio' mean's the transmission by radio of writing,
signs, signals, pictures, and sounds of all kinds"). Ironically, the reference in § 1464 to
the described language probably leaves visual images on broadcast television unrestricted
by the statute. See 131 Cong. Rec. S 5543 (daily ed. May 7, 1985) (Letter of Stephen S.
Trott, Assistant Attorney General, Criminal Division to Senator Jesse Helms, dated May
b
]
4'
;f
1
482 FORDHAM LAW REVIEW [Vol. 55
license renewal proceedings, the radio station argued that only a court
could find a violation of a criminal statute suchas section 1464. The
Commission asserted it could make such a finding.120 It then avoided the
issue by construing the statutory categories of obscene or indecent not to
include the language in question, which was merely "coarse, vulgar, sug-
gestive and susceptible of indecent, double meaning."121 Instead, the
Commission purported to act under the public interest standard, and
cited KFKB Broadcasting Association v. FRC122 and Trinity Methodist
Church v. FRC123 to reject the argument that it could not constitution-
ally consider, in a license renewal proceeding, the broadcast of "smut and
patent vulgarity" unless it rose to the level of obscenity under section
1464.124 Thus, at this stage, the Commission eschewed section 1464 and
established instead the standard of "flagrantly and patently offensive" to
determine what, in addition to the statutory categories of obscenity or
indecency, is contrary to the public interest.'
The Commission soon had a chance to apply this standard in a 1964
case.126 This case involved the Pacifica Foundation's127 radio broadcast
24, 1984); see also Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C.2d
418, 424 (1975). But see 18 U.S.C. § 1465 (1982), (prohibiting the interstate transporta-
tion of obscene material, which arguably could apply).
119. 33 F.C.C. 250 (1962), reconsid. denied, 34 F.C.C. 101 (1963), a„j'd per curiam on
other grounds sub nom. Robinson v. FCC, 334 F.2d 534 (D.C. Cir.), cert. denied, 379 U.S.
843 (1964).
120. See id. at 255. The Commission relied on a footnote in FCC v. American Broad-
casting Co., 347 U.S. 284, 289 n.7 (1954), which suggested that the FCC could consider a
license applicant's violation of a federal criminal statute designed to bar certain conduct
by licensees. See id. at 255 n.7; see also Violation by Applicants of Laws of United States,
42 F.C.C.2d 399, 401 (1951) (reaffirming FCC authority to consider unlawful behavior by
license applicant). The FCC, however, acknowledged its uncertainty in applying § 1464
due to the dearth of court decisions construing it. See Palmetto, 33 F.C.C. at 256 n.7.
121. Palmetto, 33 F.C.C. at 255. Some of the material in question concerned use of
nicknames for certain towns -"Ann's Drawers" for Andrews, "Bloomersville" for
Bloomville-use of the phrase "let it all hang out," a joke about an outhouse being worn
out from use, and the line, "Careful drivers can have accidents. Careful boyfriends can
have accidents too." Id. at 278-79 (initial decision of Hearing Examiner).
122. 47 F.2d 670 (D.C. Cir. 1931). See supra notes 26-29 and accompanying text.
123. 67 F.2d 850, cert denied, 288 U.S. 599 (1933). See supra notes 30-40 and accom-
panying text.
124. Palmetto, 33 F.C.C. at 256-57. The Commission believed it would not run afoul
of either 47 U.S.C. § 326 (1982), prohibiting censorship of radio by the FCC, or the first
amendment so long as it did not attempt to establish itself as a national arbiter of taste,
substituting its judgment or preference for that of a broadcaster or the public. See id. at
257.
125. See id at 257. The Commission also alluded to the special circumstance of applY-
ing its standard in the broadcast field. Id at 257. It referred to its earlier discussion of .Y
the problem of exposing "[t]he housewife, the teenager; [or] the young child" to patently;;„
offensive radio programming. Id at 256.
126. Pacifica Found., 36 F.C.C. 147 (1964). Pacifica was seeking an initial license for
one radio station, renewal of licenses for others, and consent to transfer of control of the:k
Foundation. See id at 147.
127. The Pacifica Foundation is an educational, non-profit corporation established 0,f,?
1949 on pacifist ideals. It owns and operates radio stations in Berkeley, Los Angeles.';`
Houston, New York City and Washington, D.C. Although its stations are non-commer`:;
ft:
•
Y
l.t
1987]
of material
reading of
homosexual
ings.128
stion 146,
avowed a r
licensee tast
'`metto's sub:
tiK•s, deeming fea
in the Com
guished Pac
and possibly
-forded to a
-did not mea
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This early
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g•
t blatant value
,the broadcast
=vThe ACLU,
•. Pacifica, but
ziBroadcasting
• several Coma
,;ing interests :
failing to sup
cial, they are sub
w:",tefoundation:(paratestatemtfr broadcasting128.SeePacifpssible Commutrt, both of whi.
129. Id. at 14i
l30.Idat14i
on, this materia
audience. Id at
;131 Id at 150.
(one-year) renew
sai.v
..owa program sup
&F) 570, 571
132:: See Barto,
37011'7' Q. 429,
beassociated with
6,the right of a
riot found on mos
CLcensee, it did
ca and other
01 Analysis o
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t..
s
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ection 1464
t then avoided
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9.121 Inst
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Trinityr
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mtly offensive"oto
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r
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v. American 13:
7CC could corisidec°
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inlawful behavior
y m applying §44-44
I F.C.C. at 256' i
on concerned iSe f
"Bloomersville"'
luthouse being ,orn
reful boyfriends:on
Hiner). •
companying teittr'�;
s 30-40 andaocom=
would not run,'
he FCC, or tiie
anal arbiter of
to public. See
;umstance of*
Earlier discussi'
child" to patat
In initial license'l
er of control 'ofi
tion established
eley, Los Angels
are non -commie
-
987]
of material such as poems authored and read by Lawrence Ferlinghetti, a
`reading of Edward Albee's play "The Zoo
•Story," a discussion by eight
'! homosexuals of their attitudes and problems, and other literary read -
128 In a footnote, the Commission reaffirmed its ability to enforce
section 1464 but found that unwarranted here.129 The Commission dis-
avowed a role -under the public interest standard to decide matters of
`licensee taste or judgment. It contrasted Pacifica's broadcasts with Pal-
metto's substantial pattern of patently offensive operation with no re-
deeming features serving the needs of the broadcast audience. Because,
in the Commission's view, serious literary and social content distin-
guished Pacifica's broadcasts, most of the material, though provocative
and possibly offensive to some, fell clearly within the wide discretion af-
forded to a licensee.'3o Pacifica, however, admitted that some passages
did not measure up to its own standards of good taste and successfully
explained the lapses so as not to bar license renewal.131
This early Pacifica Foundation case marks a more tolerant approach
by the Commission toward unconventional and potentially offensive pro-
gramming. Indeed, a remarkable feature of the case is that, despite its
blatant value judgment, the FCC was the champion of free speech, while
the broadcasting industry was singular in its lack of support for Pacifica.
The ACLU, the New York Times, and many others rallied behind
Pacifica, but major broadcasting representatives, such as the NAB and
Broadcasting magazine, were silent.132 More ironic still, it soon fell to
several Commissioners to excoriate the NAB and other major broadcast-
ing interests for being overly concerned with commercial matters while
failing to support fundamental free speech issues raised by Pacifica and
THE SIGNAL CABLE SENDS
483
ti
.4
cial, they are supported primarily by listener contributions, not by public grants or pri-
vate foundations. See United Fed'n of Teachers, 17 F.C.C.2d 204, 213-14 (1969)
(separate statement of Johnson, Comm'r) (complaint against Pacifica's New York station
for broadcasting poems allegedly containing anti-Semitic material).
128. See Pacifica Found., 36 F.C.C. at 147. Two other issues in the proceeding were
possible Communist Party influence over Pacifica and an unauthorized transfer of con-
trol, both of which the Commission resolved in Pacifica's favor. See id at 151-52.
129. Id. at 148 n.1.
130. Id at 148-49. Pacifica also had taken care to broadcast, with one minor excep-
tion, this material only after 10 P.M. thereby minimizing the number of children in the
audience. Id at 147.
131. Id at 150. The following year, however, the Commission granted only short-term
(one-year) renewal for several of Pacifica's stations for Pacifica's failure to conform to its
own program supervisory policies and procedures. See Pacifica Found., 6 Rad. Reg. 2d
(P & F) 570, 571 (1965).
132. See Barton, The Lingering Legacy of Pacifica: Broadcasters' Freedom of Silence,
53 Journ. Q. 429, 431-32 (1976). Commercial broadcasters apparently were reluctant to
be associated with the controversy. Moreover, they were not too concerned with preserv-
ing the right of an entity like Pacifica to present diverse, unconventional programming
not found on most commercial stations. So even though this decision ultimately favored
the licensee, it did not come until after a long battle with an unavoidable chilling effect on
Pacifica and other broadcasters. See Note, Morality and the Broadcast Media: A Consti-
tutional Analysis of FCC Regulatory Standards, 84 Harv. L. Rev. 664, 667-71 (1971).
{
li
S
=i4
1 •
.l
• /)
rg
484 FORDHAM LAW REVIEW [Vol. 55 .;
similar, small unconventional stations. t33
This more tolerant approach was short-lived, however, as changes in
the Commission by a new administration led to a campaign to clean up
the airways,134 though not without dissent from some Commissioners.In January, 1970, an award-winning noncommercial educational radio ^'
station in Philadelphia broadcast an interview with Jerry Garcia, leader
of "a California rock and roll musical group," the Grateful Dead.' 5
Garcia's comments, broadcast from 10 to 11 P.M., "were frequently in-
terspersed with the words `f -=k' and `s—t,' used as adjectives, or simply
as an introductory expletive or substituted for the phrase, et cetera."136
Neither the Commission nor the station received any complaints about
the program, but the Commission had monitored the broadcast and inti-
ated proceedings on its own motion to assess a forfeiture.'3'
This case, WUHY-FM, Eastern Educational Radio, is the predicate for
the Supreme Court's Pacifica decision because the Commission deliber-
1 . ee ac traw emonal oun 1 ., 21 . .
dissenting),266 • � � Cox, omm'r,
reh'g. ordered on reconsid., 24 F.C.C.2d 266 (1970) license renewed, 29
F.C.C.2d 334 (1971). As Commissioner Cox stated, "[fit would be encouraging to see the
National Association of Broadcasters come forward instead of leaving the defense of the
perimeters of freedom to the American Civil Liberties Union." Id at 840. See WBBM-
TV's Broadcast of A Report on A Marihuana Party, 18 F.C.C.2d 124, 155-56 (1969)
(Johnson, Comm'r, dissenting); United Fed'n of Teachers, 17 F.C.C.2d 204, 218-21 .
(1969) (separate statement of Johnson, Comm'r).
134. Beginning with his appointment as FCC Chairman by President Nixon in Fall,
1969, Dean Burch stressed his particular concern about obscene or indecent program-
ming
on the airwaves. In a Meet the Press interview on January 25, 1970, he stated that
"there are certain words that have no redeeming social value." Jack Straw Memorial
Found., 21 F.C.C.2d 833, 837 (1970) (Cox, Comm'r, dissenting) (quoting Meet the Press
interview with Chairman Burch Jan. 25, 1970) (emphasis omitted). He then said that the
Commission had abandoned drafting a list of such proscribed words, which he thought
was itself an obscene document, because language has to be considered in context. As a
result, the list alone would be unintelligible. See id. For a description of the Nixon Ad-
ministration's antagonistic attitude toward the broadcast media in general, and network
news in particular, see Whiteside, Annals of Television:; Shaking the Tree, The New
Yorker, Mar. 17, 1975, at 41. Whiteside, however, notes that Burch attempted to con-
duct the Commisssion's work in a competent and fair fashion. See id at 78.
135. WUHY-FM, E. Educ. Radio, 24 F.C.C.2d 408, 408 (1970). A dissenting Com-
missioner tellingly described his colleagues' estrangement from the lifestyle and language .'
of a younger generation: "To call The Grateful Dead a 'rock and roll musical group' is
like calling the Los Angeles Philharmonic a `jug band.' And that about shows 'where this
Commission's at'." Id. at 422 (Johnson, Comm'r, dissenting).
136. Id at 409. The interview was one of a series of "underground" programs, in=.
tended for college-age people, dealing with the avante-garde movement in music and the 't-
arts. Id. at 408 n.1.',
137. Id. at 409 n.2, 418 (Cox, Comm'r, concurring in part and dissenting in part). The',;
Commission had received some general complaints about WUHY's programming. It??x
had, however, received far more complaints about major television network programa;
like the Smothers Brothers Comedy Hour and the Rowan and Martin Laugh -In thaw;,
about programs on small noncommercial radio stations. Nevertheless, the Commission;'
had never acted against any of the major broadcasters. See Jack Straw Memorial Found4.
21 F.C.C.2d 833, 838-39 (1970) (Cox, Comm'r, dissenting) ("[T]he Smothers, Rowans'
and Martin, and Carson shows have all involved patterns of material that some
found offensive, rather than the limited incidents at KRAB and the Pacifica stations.")
198
and to
clear -c
owev
titC:%
•1 -Ir. Y' 1
1t
e,san
tiy;
thou
1 11 11
ir. ci
•'' 138. S
i39. S
140. _v
's He
nral''am
: 8:
48`• F.2d.:
scene.':'
:141, Se
142. Se
had`appli
1960):
.1141'. Se
ti ted. gen
P
a movie r
it`soonten
eaeis s
a ; See
1eria1
eml
11
w;
2
L•
e
wli u
• YFa
• ,••
to c1
ioii
irc„.
equeitik4
s, or siinp
ceteii:cj
St and-
. .0
iredicatel, ‘,..
ion deIjb
Cox, Coniiii7i
renewed;i29
ging to seeIllie'r-'-
cg.
defense of the r
See WBBM::
.
155-56 (1969)1'
204, 21841 „
4.1
iixon in 1afl
ent progriim';
he stated fiat
feet the prii_ss.:,
said that the
h he thouilit
•ontext. As'a
te Nixon
and networle
?e, The
ipted to
venting Com
ind langtiigc
ical group",lis
s 'where t.hli
rograms, ;a-
Lusic and the
n part). rTho '
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rk programs
ugh -In ;
Comniision
orial Foithd
iers, Rowan
some hiVe
,
L stations."). -`,1c
^- 'AL '
•
•
•
itely broke new ground in its legal analysis."' The Commission contin-
-,ru- ed to maintain- that it could act under the public interest standard in
•se-,
clear-cut, flagrant cases such as the one before it.139 For the first time,'
:however, the Commission also purported to enforce the criminal prohibi-
13-rlion of section 1464. This was not because it considered the broadcast
i:Ihscene. Indeed, the FCC conceded it was not obscene because it lacked
Ca dominant appeal to prurient or sexual matters; rather, the broadcast
-',,was indecent.141
e. •
— • The Commission's standard for evaluating the broadcast material was
„ •
the same, however, under either approach: whether the material was pa-
tently offensive under contemporary community standards and utterly
•3without redeeming social value.' The Commission also stressed that
crucial differences between radio and other media affect the application
of this standard to broadcasting.'" But the true animus behind the
Commission's action may have been its conviction that language like
Garcia's is wholly "gratuitous." In other words, it "conveys no
thought," "fosters no debate," "serves no social purpose" and is "not
THE SIGNAL CABLE SENDS 485
138. See WUHY, 24 F.C.C.2d at 415.
139. See id. at 413-14.
140. In a previous citizen band license revocation proceeding, however, the Commis-
sion's Hearing Examiner adjudicated a violation of § 1464 by applying some of the proce-
dural and substantive standards of a criminal prosecution. See Warren J. Currence, 33
F.C.C. 827, 828 (1962) (requiring FCC to meet the stricter burden of proof of criminal
cases) (initial decision of Hearing Examiner), aff'd, 34 F.C.C. 761 (1963) (decision of
• Review Board). The Hearing Examiner noted there was no direct precedent for inter-
preting "obscene" and "indecent" under § 1464, but relied on Duncan v. United States,
• 48 F.2d 128 (9th Cir.), cert denied, 283 U.S. 863 (1931), which construed substantially
Vr
identical language in § 29 of the Radio Act of 1927 as equating "indecent" with "ob-
scene." See Warren J. Currence, 33 F.C.C. at 833-34.
141. See WUHY-FM, E. Educ. Radio, 24 F.C.C.2d 408, 412-13 (1970).
•
142. See id. at 413-14. The Commission asserted that these were the standards that it
had applied in Palmetto. See id.; see also Palmetto Broadcasting Co., 33 F.C.C. 250, 257
• (1960).
143. See WUHY, 24 F.C.C.2d at 411. These differences were that radio is dissemi-
?.5» nated generally to the public without the deliberate action that reading a book or going to
1,4 a movie requires; it frequently comes 'directly into the home without advance warning of
its content, so that even programs aimed at specific audiences may reach unintended
listeners scanning the dial; and, any such audience may include a large number of
chil-
dren. See id. The Commission thus postulated that any significant broadcast of such
material would cause people to avoid the radio or to stop browsing through the dial to
avoid embarrassment and offense from an objectionable program. As a result, such
broadcasts would curtail the usefulness of radio for millions of people. Id The Commis-
,
• sion believed such a result would be inconsistent with its statutory goal of encouraging
"'larger and more effective use of radio.' " Id at 412 (quoting 47 U.S.C. § 303(g)
c:;. • (1982)).
On the other hand, as one Commissioner noted, "[i]t may be that using radio and
• television to help bridge the generation gap would be an example of 'the larger and more
effective use of radio.'" WUHY, 24 F.C.C.2d at 420 (Cox, Comm'r, concurring in part
and dissenting in part). Commissioner Cox also thought it was unlikely that broadcast-
ers, who make money by attracting audiences, would be so shortsighted as to drive listen-
ers away from radio by filling the airwaves with widely offensive programming. Id at
422 (Cox, Comm'r, concurring in part and dissenting in part).
•
486 FORDHAM LAW REVIEW [Vol. 55
essential to the presentation of the subject matter.s14'
The WUHY case encompassed all the elements of the broadcast inde-
cency debate that would resurface in Pacifica. The Commission, how-
ever, recognized that there was no judicial or administrative precedent
for its position. In particular, there was no support for distinguishing
"indecent" in section 1464 from "obscene," or for the Commission's au-
thority to control indecency, which could be settled definitively only by
the courts.145 Having initiated the proceedings on its own motion, the
Commission then specifically invited judicial review as a test case.'" But
the station simply paid the modest fine and did not appeal, probably be-
cause of financial hardship.147
A few years later the Commission got its desired court opinion that
established the only direct judicial precedent for Pacifica. The case arose
from the Commission's attempts in the Spring of 1973, motivated and
supported by Congressional pressure,148 to censor the developing phe-
nomenon of so-called "topless radio.s149 The shows quickly became very
144. Id. at 412-13, 415. At least one of the Commissioners, however, recognized that
Garcia's choice of words might not have been totally divorced from the content of what
he was saying. While agreeing that the language was offensive to many he noted that it
might have been difficult for Garcia to express the same ideas in more conventional
terms. Id. at 418-19 (Cox, Comm'r, concurring in part and dissenting in part). Another
Commissioner cited Professor Ashley Montague for the proposition that such speech
" `serves clearly definable social as well as personal purposes.' " See id. at 424 (quoting
A. Montague, The Anatomy of Swearing 1 (1967)); cf. Cohen v. California, 403 U.S. 15,
26 (1971) ("[W]e cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in the process.").
145. See WUHY, 24 F.C.C.2d at 412-13. As Commissioner Johnson put it, "[T]here
are no judicial precedents, no law review articles, no FCC decisions, and no scholarly
thinking that even attempt to define the standards of permissible free speech for the
broadcasting medium." Id. at 424-25. (Johnson, Comm'r, dissenting). But see supra
note 140.
146. See WUHY, 24 F.C.C.2d at 421 (Cox, Comm'r, concurring in part and dissenting
in part). Indeed, the Commission stated it was imposing a nominal forfeiture of 5100.00
to preserve the availability of review, which would have been unavailable if the Commis-
sion simply acted prospectively. See id at 414-15.
147. As the dissent put it, instead of considering the impact that the major television
networks have on the moral values of the country, the Commission was "picking on little
educational FM radio stations that can scarcely afford the postage to answer our letters,
let alone hire lawyers." See WUHY-FM, E. Educ. Radio, 24 F.C.C.2d 408, 423 (John-
son, Comm'r, dissenting) (1970); see also supra note 137. Commissioner Johnson called
on the Federal Communications Bar Association, and the broadcasting industry in gen-
eral, to overcome their greater interest in profitable speech rather than free speech and
vigorously to enter amici appearances if there was an appeal. See id at 424-25.
148. See Sonderling Broadcasting Corp., 27 Rad. Reg. 2d (P & F) 285, 295 (1973) (not.
of appar. liab.) (Johnson, Comm'r, dissenting); Sonderling Broadcasting Corp., 41
F.C.C.2d 777, 778 n.5 (1973) (pet. for reconsid.).
149. "Topless radio" consisted of telephone talk shows appealing largely to housewives
and other women. Such shows included explicit discussions of sexual techniques and
related matters. Various licensees developed such programming including major entities.:;
like Storer Broadcasting Company, Metromedia Broadcasting Company and Sonderling
Broadcasting Corporation. See Illinois Citizens Comm. for Broadcasting v. FCC, 515
F.2d 397, 408 (D.C. Cir. 1975) (statement of Bazelon, C.J.); Sonderling, 27 Rad. Reg. 2d
(P & F), at 285-86, 290 n.4 (examples of the programming); see also infra note 155.
1987]
popular, ei
r complaints.
' Y The Com
that include
the,NAB's
iediatel'
to'avoid flu
The FCC is
}ng Corporl
The Com
the broada
Moreover, i
dard. Inste
12464, foum
4Memoirs sty
view the bri
°lating, pant
'On one 1
because it
upreme C�
authority of
obscenity ti
x:150. Sonde)
a television cc
1;151. Sonde
Sidi) (complaii
31,048 in fisc.
x•''_152. For a
(statement of
153. See id.
iogram cont
:1054. See id.
liceiisees to a
araintained ti
;finely made b;
mmediate eli�
i 78.3-84 (pet. f
155. See Sc
/1111 ion
. ks
f `�• discuss
zens Comm.
lon, C.J.
1.1 cast froi
Missions wi
^oal:'ses. It al
"•`tots
1 eg. 2d
156:' See So
msfeial was
:1 do no
1 ynot percei
..
u=
u4
'nine,
But,
that„1,
arose''-
land:}
phe=,`;
very`:'
id that
what
that it
itional
nother
speech,;
uoting
'.S. 15;1
ticular
T]here'>
iolarly ,,
br the
supra
senting f;
.100.00;
)mmis-
evision
'on little,.
.letters,
(John -t
called
in gen
h and '.1k3
c
) (not; j,
.., 41
ewives'
es and
entities, t
derling =i
C, 515 `.
eg. 2d
155.
1987] THE SIGNAL CABLE SENDS 487
popular, even "top rated,"'So but generated a number of listener
complaints. t5t
The Commission mounted an orchestrated attack1S2 on "topless radio"
that included an intimidating address by FCC Chairman Dean Burch to
the NAB's annual national convention.ts3 As a result, broadcast stations
immediately banned virtually all sexual discussions from their talk shows
to avoid further problems.l54For one station, however, it was too late.
The FCC issued a Notice of Apparent Liability to Sonderling Broadcast-
ing Corporation and proposed a $2,000 forfeiture.'ss
The Commission stressed that sex per se is not a forbidden subject for
the broadcast media, particularly in works of dramatic or literary art.
Moreover, it eschewed any censorship role under the public interest stan-
dard. Instead, the Commission, relying on its power to enforce section
1464, found the Sonderling broadcasts obscene under the Roth and
Memoirs standards, together with guidelines from Ginzburg. It did not
view the broadcasts as serious discussions of sexual matters but as "titil-
lating, pandering exploitation of sexual materials."t56
On one level, then, the Commission's action was not too problematic
because it simply purported to find obscenity pursuant to current
Supreme Court standards and censor such material under the perceived
authority of section 1464. The Commission, however, clearly applied the
obscenity test in light of the special qualities of the broadcast medium
150. Sonderling, 27 Rad. Reg. 2d (P & F) at 297 (Johnson, Comm'r, dissenting) (citing
a television columnist for the Chicago Tribune).
151. Sonderling Broadcasting Corp., 41 F.C.C.2d 777, 778 n.5 (1973) (pet. for recon-
sid.) (complaints of allegedly obscene, indecent, or profane program material increased to
31,048 in fiscal 1973 from 2141 in fiscal 1972).
152. For a detailed description of this attack, see Illinois Citizens, 515 F.2d at 407-10
(statement of Bazelon, C.J.).
153. See id. at 408. The convention passed a resolution deploring "tasteless and vulgar
program content." Id.
154. See id. at 409. The Commission asserted its sensitivity to allegations that it forced
licensees to abandon controversial, but lawful, programming. Yet, it disingenuously
maintained that such changes were independent programming decisions like those rou-
tinely made by the licensees. The Commission also insisted that it was not mandating the
immediate elimination of all sexual material from the air. See Sonderling, 41 F.C.C.2d at
783-84 (pet. for reconsid.).
155. See Sonderling Broadcasting Corp., 27 Rad. Reg. 2d. (P & F) 285 (1970). The
Commission proceeded against Sonderling even though it had acquiesced by banning all
sexual discussion from its talk shows and so notified the Commission. See Illinois Citi-
zens Comm. for Broadcasting v. FCC, 515 F.2d 397, 409 (D.C. Cir. 1975) (statement of
Bazelon, C.J.). The Commission cited the Femme Forum program that Sonderling
broadcast from 10 A.M. to 3 P.M. Monday through Friday. The program had included
discussions with female listeners of masturbation and how they overcame "hangups" over
oral sex. It also included an exchange with a listener who called in to complain about the
broadcast of such material, particularly with children in the audience. See Sonderling, 27
Rad. Reg. 2d (P & F) at 285-86, 290 n.4, 291-92.
156. See Sonderling, 27 Rad. Reg. 2d (P & F) at 290. The majority's assessment of the
material was clear: "If discussions in this titillating and pandering.fashion of ... [oral
sex] ... do not constitute broadcast obscenity within the meaning of 18 U.S.C. § 1464, we
do not perceive what does or could." Id..
•
Aj
.,P qt
ft.
• if,
488 FORDHAM LAW REVIEW [Vol. 55
that it had identified in WUHY.157 In so deciding the case, the Commis-
sion strangely maintained that the constitutional standards for obscen-
ity—such as an appeal to prurient interest and lack of redeeming social
value -could differ for the same material presented in different media.158
Instead, it could have taken the more plausible, if no less controversial,
position that differences in the media allow different standards to deter-
mine what material can be regulated or banned:
Moreover, the Commission alternatively construed "indecent" under
section 1464 as something less than obscene in the broadcast field. Thus,
even if Sonderling's broadcasts did not appeal to a prurient interest, they
were patently offensive and without redeeming social value and, there-
fore, could be proscribed.i59 The Commission's action, therefore, again
raised the issue of the scope of its power to censor. Recognizing the
uncertainty and absence of judicial guidance, the Commission again ex-
plicitly "welcome[d] and urge[d] judicial consideration" of its action.16°
The resulting appeal by concerned citizens16' produced the first oppor-
tunity for substantive judicial review of the Commission's policy toward
obscene and indecent broadcast material.162 The court, however, largely
ignored this opportunity. On the crucial issue of the obscenity of the
157. See supra note 143 and accompanying text. The Commission reiterated that these
special qualities are that broadcasting is a medium designed to be received and sampled
ubiquitously and almost casually, as an "electronic smorgasborg" with free access to the
home "without regard to age, background or degree of sophistication" of the listeners.
See Sonderling, 27 Rad. Reg. 2d (P & F) at 288. While the Commission based its conclu-
sion on the generally "pervasive and intrusive nature of the broadcast radio," the poten-
tial for children in the broadcast audience made it an a fortiori matter. See id. at 290. t`
158. Id at 288-89; cf id. at 296 (Johnson, Comm'r, dissenting).
159. See id. at 292._
160. Id. at 293. A dissenting Commisssioner, however, challenged the Commission's
finding of obscenity, and its special treatment of the broadcast medium. He further chal-
lenged the notion that nonobscene, but "indecent," material could be regulated unless it
was impossible for an unwilling listener to avoid exposure to it. He even took issue with
the propriety of Commission rather than judicial action, with the consequent "Big
Brother" chilling effect from such action by the licensing agency. See id. at 294 (Johnson,
Comm'r, dissenting).
161. Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397 (D.C. Cir. 1975).
Although Sonderling vehemently protested the Commission's decision, it paid the forfei-
ture stating that it could not sustain the tremendous financial burden of testing the consti-
tutional issues involved. Id. at 410 (statement of Bazelon, C.J.) (quoting letter from
Sonderling to FCC). Thus, the Illinois Citizens Committee for. Broadcasting and the
Illinois Division of the ACLU pursued the matter, thereby creating some procedural
difficulties in obtaining review of all relevant issues. Id at 403. t
162. In an intervening reconsideration the Commission disavowed any broad chilling
effect and tried to dispel the notion that it was intent on censoring all material dealing_ s•'
with sex. See Sonderling Broadcasting Corp., 41 F.C.C.2d 777, 783-84 (1973) (pet for,;=''
reconsid.). But see Illinois Citizens, 515 F.2d at 421 (statement of Bazelon, C.J.) (accord='
ing little weight to FCC's assertation that it did not intend broad self -censorship of broad...-.> r
casting by its decision in Sonderling). The Commission also reaffirmed its finding of !;F'
obscenity in the broadcast context under the new criteria announced by the Supreme
Court in Miller v. California, 413 U.S. 15 (1973), which had been decided just after the:
Notice of Apparent Liability in Sonderling. See Sonderling, 41 F.C.C.2d at 782 n.14.
t,
1987
roadcast,
Altl
ye and
'_Mille
d"edefinit the
t^10.11
•,th (Men
�rCeful`ar
X11.• baric,
rs, mc
e 11 1 S1(
7-111110; the
egion.
ebr'ow'
� n»t<
:n Initial ji
�= tinted b:
'Comm
,Pacifica
such prop
the-Siipren
produce al
e .the brc
Y- 1
163: Signii
clned to dec
t" u
64: See s:
165. As th
``utterly
political or sc
tt.to material
y, defined
:3:115, 27 (
166: See Il
tht,statutory
alder set of s
niry'commur
a'biief sonde
' ole.s' See is
• . leets wit
.:: dards).
167:' Judge
lone to
-toourt.'made
r^�JId at
F�1'EJ-; Ella
en"sive li
8.., n.
�ir. 19
[v
SSS
, the Co
ds for oba`� �'' -'
Ldeeming socal,
erent mediaass
s controverk4 ;.
dards to
deter-'
?:�. ^.
Ldecent" under
ist field. Thus;
�uT�,
Et interest, they
lue and, there
herefore, again,
ecognizing
ssion again ex
>f its action• i69
the first oppoi r)
policy toward
>wever, largelyt
i„
Lscenity of the•.':;
'"SCI
iterated that these-'''
ived and sampled!!
free access to the`
" of the listeners*.
based its conclu r
radio," the poten- <
See id. at 290. r..
he Commission's
He further chal-
5gulated unless it
n took issue with
consequent "Big
at 294 (Johnsoiv';4'
(D.C. Cir. 1975)'.
it paid the forfei=„;,
esting the consti-:.:y
)ting letter fronir
3casting and
some procedural
iy broad chilling ti
material dealing' `.
I. (1973) (pet. for;?:.,
C.J.) (accord- s"'•
sorship of broad 1;-
ed its finding oft`
by the Supreme,.
led just after the °r
at 782 n.14.
1987] THE SIGNAL CABLE SENDS 489
broadcast,163 the court upheld the Commission's finding in a curious
way. Although the Commission originally had found the program ob-
scene under the Roth and Memoirs standards,'" the court held that the
new Miller criteria, which it recognized both expanded and contracted
the definition of obscenity, controlled.165 The court, however, then af-
firmed the Commission's action which, in fact, complied with neither the
Roth/Memoirs standards nor the new Miller standards.'66 Indeed, in a
forceful and lengthy statement explaining why he would grant rehearing
en banc, Chief Judge Bazelon167 castigated the court for its numerous
errors, most notably the failure to recognize as blatant censorship the
Commission's general attack on all sex -oriented talk shows. To the Chief
Judge, the Commission's action "illustrat[ed] a whole range of `raised
eyebrow' tactics” of FCC regulation, instances of which were
"legion."168
Initial judicial review of the Commission's attempts to control sexually
oriented broadcast programming as either obscene or indecent thus left
the Commission in a very tenuous and unstable position. - Nothing prior
to Pacifica established a satisfactory legal basis or policy for dealing with
such programming. A case like Pacifica, therefore, was bound to reach
the Supreme Court before too long. Unfortunately, Pacifica also failed to
produce anything approaching a well-defined or well -reasoned standard
for the broadcast media.
163. Significantly, because the court upheld the finding of obscenity, it specifically de-
clined to decide whether the Commission's interpretation and application of the term
"indecent" under § 1464 was constitutional. See Illinois Citizens, 515 F.2d at 403 n.14.
164. See supra notes 66-70 and accompanying text.
165. As the court explained, Miller expanded the definition of obscenity by replacing
the "utterly without redeeming social value" test with a lack of "serious literary, artistic,
political or scientific value." Id. at 404. Yet, Miller contracted the definition by limiting
it to materials that "depict or describe patently offensive 'hardcore' sexual conduct specif-
ically defined by the regulating state law." Id. at 405 (quoting Miller v. California, 413
U.S. 15, 27 (1973)).
166. See Illinois Citizens, 515 F.2d at 406. The court, for example, declined to decide if
the statutory specificity required by Miller was satisfied. It also found no problem, under
either set of standards, in the Commission's failure to determine and to apply contempo-
rary community standards. Finally, it approved the Commission's consideration of only
a brief condensation of the offensive material apart from the context of the broadcast as a
whole. See id. at 404-06; see also id. at 415-20 (statement of Bazelon, C.J.) (discussing the
problems with a finding of obscenity under either the Miller or the Roth/Memoirs
standards).
167. Judge Bazelon was not a member of the panel that heard the case and was the
only one to vote for en banc consideration. See id. at 410 (statement of Bazelon, C.J.)
(court made four groups of errors justifying rehearing en banc).
168. Id at 407-08. For the origins of the "raised eyebrow" view of FCC regulation,
see C. Ferris, F. Lloyd & T. Casey, Cable Television Law ¶ 3.11 n.5 (1985). Bazelon also
suggested that the root of such overbearing regulation and censorship might be the com-
prehensive licensing scheme creating the pervasive threat of "sub rosa bureaucratic
hassling." Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 407, 425
(D.C. Cir. 1975) (statement of Bazelon, C.J.).
490 FORDHAM LAW REVIEW [Vol. 55
3. The Pacifica Case
-- On a weekday afternoon in October, 1973, Pacifica's New York City
FM radio station WBAI broadcast George Carlin's monologue about
"the words you couldn't say on the public, ah, airwaves, um, and ones
you definitely couldn't say."169 WBAI did not broadcast the monologue
for its comedic value, but as an "incisive satirical" contribution to a lis-
tener call-in discussion of contemporary society's attitudes toward lan-
guage.170 Not everyone so regarded, it. Although the broadcast had been
preceded by a warning, one man, driving in Manhattan with his "young"
son, heard at least a portion of the monologue over his car radio and
complained to the FCC.171 As in WUHY,172 no one else complained
either to the Commission or to the station.173 The Commission did not
issue an order regarding the complaint until its Sonderling174 decision
had been affirmed. Thus emboldened, the Commission used the Pacifica
case to address175 the unabated problem of indecency on the air and to
clarify the standards that it would apply to "indecent" language.176
The Commission based its decision on the analysis in WUHY and
Sonderling as to perceived "unique qualities" of the broadcast medium
that made it "not subject to the same analysis that might be appropriate
1987]
for other,
unclear w
Sonderlin�
the Comn
indecency
Althou;
oiathe M
obscenity.
light of ti
'=sign also
even solei'
if'there w
basis, and
idly and
idly" wer
language '
For the
sion s pos
court awl
sacs of r.
h.184
169. Pacifica Found. v. FCC, 556 F.2d 9, 38 (D.C. Cir. 1977) (Appendix), rev'd, 438
U.S. 726 (1978).
170. Pacifica Found., 56 F.C.C.2d 94, 95 (1975), on reconsid, 59 F.C.C.2d 892 (1976),
rev'd, 556 F.2d 9 (D.C. Cir. 1977), rev'd, 438 U.S. 726 (1978). The words Carlin so
identified were "shit," "piss," "fuck," "cunt," "cocksucker," "motherfucker," and "tits,"
causing the case to be called the "seven dirty words case." See FCC v. Pacifica Found.,
438 U.S. 726, 751 (1978) (appendix to Court opinion). A verbatim transcript of the full
monologue is reproduced as an appendix to each court opinion.
Although the Commission requested a recording or script of the entire program, the
station was unable to comply because no recording had been made. Moreover, there was
no script for the live and extemporaneous program. The Commission, therefore, had to
rely upon the licensee's description of the program to place the monologue in proper
context. Pacifica 56 F.C.C.2d at 96.
171. See id. at 95. The "young" son turned out to be fifteen years old. See Robinson,
Another Look at Pacifica, 2 Cable T.V. Law & Finance 1, 6 (Mar. 1984) (article by former
member of FCC that ruled on Pacifica). The complainant was a member of the national
planning board of Morality in Media. See Broadcasting, July 10, 1978, at 20.
172. See supra note 137 and accompanying text.
173. Pacifica Found. v. FCC, 556 F.2d 9, 11 (D.C. Cir. 1977), rev'd, 438 U.S. 726
(1978).
174. See Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397 (D.C. Cir.
1974).
175. The Commission issued a Declaratory Order as a "flexible procedure" to termi-
nate the instant controversy and clarify the Commission's standard on indecency. At the
same time, this allowed interested parties to seek reconsideration and judicial review.
Pacifica, 56 F.C.C.2d at 99. The Commission did not impose sanctions on Pacifica. In a
rather intimidating manner, however, it associated its order with the station's license file,
for reference in light of any future complaint. See id.; Pacifica, 556 F.2d 20 n.7 (Bazelon,
C.J., concurring).
176. The Commission simultaneously relied on Sonderling and its action against
Pacifica in a report to Congress about actions it was taking to combat television violence'`
and obscenity. See Violent, Indecent, and Obscene Material, 51 F.C.C.2d 418, 424-25
(1975).
177. Pacif
av'd, 556 F.
>'178. See I
D.C. Cir. V
or rehearini
herefore, w,
approach ha
179. Seel
pficit langua
tionally-wort
6. The Cc
cause "(1) it
(2) when chi
-`y1 )arti.
;_180. See r
181. See F
182. See is
483. See F
Q78). Just
faiatiOn of it.
Commission
Public affairs
' ' See Pac
483 Us. 72f
ding yo
an absc
84 ' Pacifi
i85;
t.
1a55
ew York City,
nologue aliont
um, and ones
the monologue
ution
es toward lan',
dcast had be n`
th his "young",
car radio 'acid`
se complainedr
'ssion did not`;
ing174 decisioi6'?
ed the Pacific is
the air and tiPA-
nguage.176
WUHY and=:t
dcast medium!
be appropriate -;s.
en • ,revs,
.C.2d 892 (1976);;,
words Carlin so
..
cker,"and tits,
. Pacifica Found.,::}
script of the full
tire program, the
reover, there was
therefore, had to.
ologue in proper
d. See Robinson,'~'
(article by former
er of the national •'
, at 20.
'd, 438 U.S. 726.?
d 397 (D.C. Cir.
ure" to termi=,
decency. At the
d judicial review:
on Pacifica. In'a'y';•
tion's license
20 n.7 (Bazelon;'; 1
is action against ";;f.'
elevision violence `..\?1.,
C.2d 418, 424-25
t,.
JL4,
? 4
1987] THE SIGNAL CABLE SENDS 491
for other, less intrusive forms of expression.s177 But because it was still
unclear whether indecency was distinct from obscenity, and because the
Sonderling court had left in limbo the appropriate obscenity standard for
the Commission to apply,18 the Commission reformulated its concept of
indecency.19
Although its analysis was less than clear, the Commission first relied
on the Miller standards as adapted by the Ginsberg notion of variable
obscenity.180 It then indicated that these criteria would be measured in
light of the "unique qualities" of the broadcast medium. The Commis-
sion also strongly suggested that indecent material should be unavailable
even solely to adults, and totally barred such material from the airwaves
if there was a wholly undefined risk of exposure to children.181 On this
basis, and particularly because WBAI broadcast forbidden words repeat-
edly and deliberately in the early afternoon, when children "undoubt-
edly" were in the audience, the Commission readily concluded that the
language "as broadcast" violated section 1464's ban on indecency.182
For the first time, a licensee sought judicial review of the Commis-
sion's position on broadcast indecency.l83 Once again, however, the
court avoided the "perplexing question" whether. the unique character-
istcs of radio and television allow the FCC to prohibit nonobscene
speech.184 Instead, Judge Tamm, writing for a sharply divided panel,'8s
177. Pacifica Found., 56 F.C.C.2d 94, 97 (1975), on reconsid., 59 F.C.C.2d 892 (1976),
rev'd, 556 F.2d 9 (D.C. Cir. 1977), rev'd, 438 U.S. 726 (1978). See supra notes 143 & 157.
178. See generally Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397
(D.C. Cir. 1974). When the Commission issued its initial decision in Pacifica the petition
for rehearing en banc in Sonderling was still pending. The Sonderling panel's approach,
therefore, was subject to change and Chief Judge Bazelon's statement criticizing that
approach had not yet been published. See id
179. See Pacifica, 56 F.C.C.2d at 97. The Commission did not consider Carlin's ex-
plicit language to be obscene, see id, although it so labelled the suggestive, but conven-
tionally -worded, discussion of oral sex in Sonderling. See Illinois Citizens, 515 F.2d at
406. The Commission, however, differentiated indecent language from the obscene be-
cause "(1) it lacks the element of appeal to the prurient interest [citing WUHY] and .. .
(2) when children may be in the audience, it cannot be redeemed by a claim that it has
literary, artistic, political or scientific value." See Pacifica, 56 F.C.C.2d at 98 (footnote
omitted).
180. See supra notes 72-92 and accompanying text.
181. See Pacifica, 56 F.C.C.2d at 98.
182. See id at 99.
183. See Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977), rev'd, 438 U.S., 726
(1978). Just prior to the appellate argument, the Commission released a purported clari-
fication of its original order in Pacifica, pursuant to a petition seeking a ruling that the
Commission did not intend to prohibit indecent language as part of a bona fide news or
public affairs program. The Commission refused to consider such a hypothetical situa-
tion. See Pacifica Found., 59 F.C.C.2d 892, 893, rev'd, 556 F.2d 9 (D.C. Cir. 1977), rev'd,
483 U.S. 726 (1978). It nevertheless stressed that its Declaratory Order was aimed at
protecting young children from sexually explicit language, and that it was not intended to
place an absolute prohibition on broadcast of such language.
184. Pacifica Found. v. FCC, 556 F.2d 9, 10 (D.C. Cir. 1977), rev'd, 438 U.S. 726
(1978).
185. Three separate opinions were filed. Chief Judge Bazelon, who already had criti-
i
492 FORDHAM LAW REVIEW [Vol. 55
discredited the Commission's labelling of its ban simply as a channeling
mechanism to protect children under a nuisance doctrine.186 The court
then held the Commission's Declaratory Order to be censorship in viola-
tion of section 326. Judge Tamm thus did not have to reach the difficult
and unresolved issue of whether "indecent" in section 1464 could be de-
fined more narrowly than "obscene."187 Rather, even assuming that the
Commission could act against non -obscene speech under section 1464, he
relied on Erznoznick and Cohen to rule the FCC's Order overbroad and
vague in its application of section 1464.188
On appeal, Judge Tamm's reliance on the prohibition against censor-
ship in section 326 was the opening wedge of Justice Stevens' opinion for
a bare majority of the Court. Based on the common origin and legisla-
tive history of section 326 and section 1464,189 Justice Stevens concluded
that the statutory ban on censorship was inapplicable to the Commis-
sion's authority to sanction obscene, indecent, or profane language. He
reasoned further that the Commission's subsequent review of program
content, as opposed to prior review and editing, was not the censorship
addressed by section 326.190
1987]
Althoug
een sect
well -r
`road D
wholly d
clllin�g
yield. g3
aving
op=of sec
t is differ
FCC, for
ieviously
alolly abc
ng.on the
ing more t
'i evious s�
d its fo]
ttoubleson
to question
z .
cized the Commission's Pacifica Order in Illinois Citizens Comm. for Broadcasting, 515
F.2d 397, 418 n.48 (statement of Bazelon, C.J.), agreed with Judge Tamm's result. See
Pacifica, 556 F.2d at 18. He also would have found a constitutional violation, rejecting
broadcast indecency as an additional category of unprotected speech based on the sup-
posedly unique characteristics of broadcasting. See Pacifica, 556 F.2d at 24-25. (Bazelon,
C.J., concurring).
Judge Leventhal, the third member of the panel, dissented because he construed the
Commission's Order as a narrow, limited one. He also viewed the Commission's defini-
tion of indecency as the "functional equivalent," in the broadcasting context, of the
Supreme Court's obscenity standard in Miller. See id. at 32 (Leventhal, J., dissenting).
186. See Pacifica, 556 F.2d at 14 (even if it is a "channelling mechanism," the effect is
censorship). The Commission's nuisance doctrine was probably both inapposite and out-
moded. See Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 418 n.48
(D.C. Cir. 1977) (statement of Bazelon, C.J.); see also supra note 178. It spawned, how-
ever, a porcine analogy whose odor has permeated this area. See Pacifica, 56 F.C.C.2d at
98 ("The law of nuisance does not say, for example, that no one shall maintain a pigsty
. [but] that no one shall maintain a pigsty in an inappropriate place ...."); Pacifica,
556 F.2d at 17 ("The Commission's Order is a classic case of burning the house to roast
the pig."); FCC v. Pacifica Found., 438 U.S. 726, 750-51 (1978) ("[W]hen the Commis-
sion finds that a pig has entered the parlor, the exercise of its regulatory power does not
depend on proof that the pig is obscene."); id. at 766 (Brennan, Marshall, JJ., dissenting)
(" 'burn the house to roast the pig' ") (quoting Butler v. Michigan, 352 U.S. 380, 383
(1957)); Cruz v. Ferre, 755 F.2d 1415, 1420 n.6 (11th Cir. 1985) (In cable indecency case,
"[I]f an individual voluntarily opens his door and allows a pig into his parlor, he is in less
of a position to squeal.").
187. Pacifica, 556 F.2d at 15.
188. See id. at 16-17.
189. See supra note 118.
190. FCC v. Pacifica Found., 438 U.S. 726, 735-38 (1978). The Court cited KFKB
Broadcasting Ass'n, Inc. v. Federal Radio Comm'n, 47 F.2d 670 (D.C. Cir. 1931) and:;
Trinity Methodist Church v. FRC, 62 F.2d 850 (D.C. Cir. 1931), ignoring the conflict;:=
between those cases and the Court's contemporaneous prior restraint decision in Near V.
Minnesota, 283 U.S. 697 (1931). See id. at 736. See supra text accompanying notes 34-
40. The Commission's sanction of Pacifica, although not as drastic as the denial of li-;''
mace' renewi
effect, on ful
1azlon, C.
):C Cir. 1!
;191. See F
th s'point. Si
brushed asid
criminal
See Pacifica,
Broadcasting
�cecen 1y ant
§;1464, it no
#.loca1 auth
alio infra no
`x'•192. The 4
icifically desii
see;Pacifica l
rev'd, 556 F.
tion whi
Corirt thus I
cial error
1i ..Illinois
97.7); (stater
":i -193::Indet
r ; e broadc
See ie
15 AIthc
64 the d
4the first a
tory prc
lyasacha
rine.186 The
ensorship in �vio.
reach the diffic:
1464 could
assuming that tli
er section 1
der overbroadan,E
on against censo
tevens' opinioA4tor
origin and legisla
Stevens concluded
Le to the Commis'
Fane language. He
-eview of program
not the censorship
for Broadcasting, 51S:
ge Tamm's result. See';
nal violation, rejecting`
ech based on the sup=s';
.2d at 24-25. (Bazelon;:
ause he construed the;
e Commission's defini=�'
asting context, of the;
enthal, J., dissenting)..
:chanism," the effect
>th inapposite and out
15 F.2d 397, 418 n.48
178. It spawned, how-_
acifca, 56 F.C.C.2d at
;hall maintain a pigsty
place ...."); Pacifica,
ung the house to roast
"[W]hen the Commis
llatory power does not
arshall, JJ., dissenting)',
an, 352 U.S. 380, 383
a cable indecency case,
his parlor, he is in less
:1987] THE SIGNAL CABLE SENDS 493
Although the Court may have correctly assessed the relationship be-
tween section 326 and section 1464,191 it completely ignored the substan-
v tial, well-recognized censorship effect of a raised FCC eyebrow, let alone
a broad Declaratory Order.192 A licensee's relationship with the FCC is
.a wholly dependent one, and sanctions imposed on one broadcaster have
a chilling effect on all others. Consequently, the Court surely was wrong
in refusing to recognize the Commission's Order as a classic example of
sweeping censorship, regardless of whether such action ultimately ; was
u held.193
Having thus interpreted section 326, the Court turned to a considera-
tion of section 1464 and the meaning of "indecent," particularly whether
it is different from "obscene." This was the major issue on which the
FCC, for some time, had sought judicial guidance but which had been
previously avoided. Incredibly, in a few quick paragraphs, the Court
wholly abdicated its responsibility for constitutional adjudication by rely-
ing on the Commission's "long interpretat[ion of] § 1464 as encompass-
ing more than the obscene."194 The Court thus bootstrapped the FCC's
previous scant assertions as to the constitutional meaning of indecency,
and its forthright requests for judicial guidance on this uncertain and
troublesome issue, into authority to determine the very proposition put
in question.195 More incredible still, the Court allowed the Commission's
he Court cited KFKB
I (D.C. Cir. 1931) ands
1, ignoring the conflice
int decision in Near v.
.companying notes 34 L.
;tic as the denial of li-
cence renewals in KFKB and Trinity Methodist, nonetheless created a substantial chilling
effect on future programming of all broadcasters. See Pacifica, 556 F.2d at 20 n.7
(Bazelon, C.J., concurring); Illinois Citizens Comm. v. FCC, 515 F.2d 397, 422 n.59
(D.C. Cir. 1974) (statement of Bazelon, C.J.). See infra note 193.
191. See FCC v. Pacifica Found., 438 U.S. 726, 735 (1978). Even Bazelon agreed on
this point. See Pacifica, 556 F.2d at 20 (Bazelon, C.J., concurring). The Court, however,
brushed aside any issue of the Commission's power to impose civil penalties for violation
of a criminal statute, see Pacifica, 438 U.S. at 739 n.13, which is far more problematic.
See Pacifica, 556 F.2d at 20 n.7 (Bazelon, C.J., concurring); Illinois Citizens Comm. for
Broadcasting, 515 F.2d 397, 423 n.62 (statement of Bazelon, C.J.). The Commission has
recently announced that, despite past exercise of concurrent jurisdiction to enforce
§ 1464, it now will "exercise greater restraint in this area" and defer, in obscenity cases,
to local authorities. Video 44, 103 F.C.C.2d 1204, 1209-10 (1986) (mem. op. & ord.); see
also infra . note 232.
192. The Court simply ruled that the Commission's Declaratory Order, although spe-
cifically designed to clarify its general principles and standards as to indecent language,
see Pacifica Found., 56 F.C.C.2d 94, 94-95 (1975), on reconsid, 59 F.C.C.2d 892 (1976),
rev'd, 556 F.2d 9 (D.C. Cir. 1977), rev'd, 438 U.S. 726 (1978), was just a particular adju-
dication which was all the Court would review. See Pacifica, 438 U.S. at 734-35. The
Court thus perpetuated what Chief Judge Bazelon had described as the most pervasive
judicial error: failing to acknowledge and appreciate the entire, well-documented policy
of Commission censorship by focusing instead on individual Commission actions in isola-
tion. Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 421-24 (D.C. Cir.
1977) (statement of Bazelon, C.J.). Cf. infra note 229.
193. Indeed, the Court itself acknowledged that the Commission's Order might lead
some broadcasters to censor themselves. See Pacifica, 438 U.S. at 743.
194. See id at 741 (footnote omitted). •
195. Although the Court arguably was engaged simply in statutory construction of
§ 1464, the definition of "indecent," like the definition of "obscene," is really at the heart
of the first amendment issues. For this reason, in an earlier case construing a similar
statutory prohibition on obscenity in the mails, the Court interpreted the entire phrase
1
114
494 FORDHAM LAW REVIEW [Vol. 55
interpretation to stand in the face of its own and other strong precedent
to the contrary.196 In other words, the Court allowed what Chief Judge
"obscene, lewd, lascivious, indecent, filthy or vile" to be limited to the obscene. See
Hamling v. United States, 418 U.S. 87, 112 (1974) (quoting Manual Enters., Inc. v. Day,
370 U.S. 478, 482-84 (1962)). This language was, therefore, controlled by the Miller
standards, and this assured the statute's constitutionality. See id at 110-16. Moreover,
with regard to a criminal statute such as § 1464, notwithstanding its relationship to civil
penalties under the Communications Act, see supra note 191, there was no justification
for the ,Court to defer to a regulatory agency's construction. Such deference was wholly
inappropriate with regard to constitutional interpretation. See Pacifica Found. v. FCC,
556 F.2d 9, 22 n.12 (D.C. Cir. 1977) (Bazelon, C.J., concurring), rev'd, 438 U.S. 726
(1978); id. at 35 (Leventhal, J., dissenting); Illinois Citizens, 515 F.2d at 422 n.59 (state-
ment of Bazelon, C.J.).
Indeed, just two months prior to its Pacifica decision the Court ruled: "Deference to a
legislative finding cannot limit judicial inquiry when First Amendment rights are at
stake.... [O]therwise, the scope of freedom of speech and of the press would be subject
to legislative definition and the function of the First Amendment as a check on legislative
power would be nullified." Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
843-44 (1978); see also Lowe v. SEC, 105 S. Ct. 2557, 2576, 2583-84 (1985) (White,
Rehnquist, JJ., and Burger, C.J., concurring) (in striking down on first amendment
grounds SEC's construction of Investment Advisers Act, the Court, not the SEC or Con-
gress, has the duty to say what the law is); United States v. 12 200 -Ft. Reels of Super
8mm Film, 413 U.S. 123, 130 n.7 (1973) (in obscenity cases, Supreme Court has "a duty
to authoritatively construe federal statutes where 'a serious doubt of constitutionality is
raised' and 'a construction of the statute is fairly possible by which the question may be
• avoided.' ") (citing United States v. Thirty -Seven Photographs, 402 U.S. 363, 369 (1971)
(White, J.) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Accord Johnson v. Robi-
son, 415 U.S. 361, 367-68 (1974) (despite great deference to agency's statutory interpreta-
tion, "'[a]djudication of the constitutionality of congresssional enactments has generally
been thought beyond the jurisdiction of administrative agencies' ") (quoting Oestereich v.
Selective Serv: Sys., 393 U.S. 233, 242 (1968) (Harlan, J., concurring)). In an earlier
broadcasting case, Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94
(1973), the Court stated:
[I]n evaluating ... First Amendment claims ... we must afford great weight
to the decisions of Congress and the experience of the Commission.... That is
not to say we 'defer' to the judgment of the Congress and the Commission on a
constitutional question, or that we would hesitate to invoke the Constitution
should we determine that the Commission has not fulfilled its task with appro-
priate sensitivity to the interests in free expression.
Id. at 102-03.
196. See Hamling v. United States, 418 U.S. 87, 110-15 (1974), (Rehnquist, J.) (follow-
ing Manual Enters., Inc. v. Day, 370 U.S. 478, 482-84, 487-88 (Harlan, J.) (1962)). Per-
haps the clearest statement of the Court's previous position on similar federal obscenity
statutes is United States v. 12 200 -Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973).
If and when such a "serious doubt" [as to constitutionality] is raised as to the
vagueness of the words "obscene," "lewd," "lascivious," e, d, lascivious, "filthy," "indecent,"
or "immoral" as used to describe regulated 'material ... we are prepared to
construe such terms as limiting regulated material to patently offensive represen-
tations or descriptions of that specific hard core' sexual conduct given as exam-
ples in Miller v. California ... .
Id. at 130 n.7 (emphasis added) (citations omitted). See Marks v. United States, 430 U.S.
188, 195 (1977) ("sweeping" language of federal obscenity statute confined within consti-
tutional limits); Dunlop v. United States, 165 U.S. 486, 500-01 (1897) (approving
instructions construing the language "obscene, lascivious, lewd or indecent" as having
one meaning of moral depravity); Swearingen v. United States, 161 U.S. 446, 450-51
(1896) (statutory language prohibiting the mailing of "obscene, lewd or lascivious" mate
4
1987]
Bazelon rei
FCC's "tot
govern its
a mendment
e Cou
e"byni
cy: It t]
under sectic
II1CIltS.198 T]
construed
encompassing
U.S. 726,1
1464 properl
Lower feder
61F.2d 53, 6C
- a
single pro:
Bl
1972) (secs
stitutional vatic
`Gagliardo v. U
Indecent" in
(S.D.N.Y.
• "indecent" and
tFinall at le.
gs Y.
• lity of a stand:
tio, ,24 F.C.C.:
part} id. at 42
F,C.C.2d 833,1
'197. Illinois
1975) (statemen
:OM 1977) (Baz
s>e Court di:
d`e'cThent" with " c
meaning the fin
438,. U.S. at 74 ]
Squarely on the
first_-amendmen
:B adasting, 4:
:;Nat'l Comm., 4:
{400 (1969). The
Mship presented it
easnie diversity
of expressi
(B zelon;
hall, JL,
9h majority's "a
y pluralism"
:eapressioa. S
,; r Court in .
lwhich
,;��, clearly
1 tin an inap]
at�t7'41 42.
198 :See PaciJi
' 11 ed Justice Ste
Goes Powell and
obscene
by the `..
6. Mo
nship,t9
o justifi
was wfio i
und. v'F
438 U.S:
2 n.59 (stare.`
IPeference "to.a
rights are at
uld be subject
on legislative,
435 U.S. 829;,;
1985) (White;
t arnendmeiit
SEC or
eels of Super
t has "a duty,
itutionality iso'
stion may be
3, 369 (197i)
nson v. Robin,
ry interpret ;
has generally:
Oestereich v,;`
In an earlier,'
, 412 U.S. 94.
ti, _,
t weight
That is
ion on a
ititution
L appro-
m
:L¢
J.) (follovil
I962)). Per";:,?
fal obscenity}:
123 (1973).?;,;
to the
ecent,"
red to <Y`
resen-
exam- 'z
es, 430 U.S:,`;,r
thin constit;Y
roving jury.
' as having' -}
450-51!'.
ous"
•
.. s
1987] THE SIGNAL CABLE SENDS • 495
Baxelon referred to "most charitably" in this precise context as the
FCC's "total ignorance of the constitutional definition of obscenity" to
govern its own paramount role in interpreting and applying the first
a endment.197
%- The Court thus allowed "indecent" to be distinguished from "ob-
: ",:.
, scene» by not requiring appeal to prurient interest as an element of inde-
cency. It therefore followed that the Carlin monologue was indecent
'under section 1464, and the Court then turned to constitutional argu-
°' ments.198 The Court, however, declined to consider the overbreadth of
rial construed as a single offense signifying immorality relating to sexual impurity and not
encompassing merely coarse and vulgar language). See generally FCC v. Pacifica Found.,
438 U.S. 726, 778 (Stewart, Brennan, White, Marshall, JJ., dissenting) ("indecent" under
§ 1464 properly should be read as meaning no more than "obscene").
Lower federal courts had reached similar conclusions. See United States v. Simpson,
561 F.2d 53, 60 (7th Cir. 1977) (" `obscene' and 'indecent' in § 1464 are to be read as part
of a single proscription"); see also Tallman v. United States, 465 F.2d 282, 285-86 (7th
Cir. 1972) (section 1464 must be construed as harmonious with Roth to preserve its con-
stitutional validity); United States v. Smith, 467 F.2d 1126, 1129 (7th Cir. 1972) (same);
Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966) (failure to define the word
"indecent" in § 1464 was reversible error); United States v. Bennett, 24 F. Cas. 1093,
1103 (S.D.N.Y. 1879) (No. 14,571) (approving jury instructions that essentially identified
"indecent" and "obscene").
Finally, at least two Commissioners had expressed grave doubts about the constitution-
ality of a standard as vague as "indecent" under § 1464. See WUHY-FM, E. Educ. Ra-
dio, 24 F.C.C.2d 408, 419 (1970) (Cox, Comm'r, concurring in part and dissenting in
part); id. at 422-25 (Johnson, Comm'r, dissenting); Jack Straw Memorial Found., 21
F.C.C.2d 833, 834 (1970) (Cox, Comm'r, dissenting); see also supra note 140.
197. Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 418 (D.C. Cir.
1975) (statement of Bazelon, C.J.). • See FCC v. Pacifica Found., 556 F.2d 9, 20-21 (D.C.
Cir. 1977) (Bazelon, C.J., concurring), rev'd, 438 U.S. 726 (1978).
The Court distinguished Hamling and the other substantial authority for equating "in-
decent" with "obscene" by finding them inapplicable to § 1464 because of the special
meaning the first amendment supposedly has in the broadcasting context. See Pacifica,
438 U.S. at 741-42 n.17. But the cases the Court cited for this proposition all relied
squarely on the perceived scarcity of the electromagnetic spectrum as the basis for special
first amendment treatment of broadcasting. See FCC v. National Citizens Comm. for
Broadcasting, 436 U.S. 775, 779-800 (1978); Columbia Broadcasting Sys., v. Democratic
Nat'l Comm., 412 U.S. 94, 101 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
400 (1969). The scarcity rationale, however, not only is irrelevant to the issue of censor-
ship presented in Pacifica, but is antithetical to it. Scarcity and the concommitant need to
ensure diversity of expression support an end to FCC censorship and a multiplicity of all
types of expression on the airwaves, rather than censorship. See Pacifica, 556 F.2d at 29
(Bazelon, C.J., concurring); FCC v. Pacifica, 438 U.S. 726, 770 n.4 (1978) (Brennan,
Marshall, JJ., dissenting). Indeed, in their dissent Justices Brennan and Marshall decried
the majority's "acute ethnocentric myopia" that prevented it from appreciating the `cul-
tural pluralism" in this country, thereby allowing majoritarian tastes to silence diversity
of expression. See id at 775 (Brennan, Marshall, JJ., dissenting).
The Court in Pacifica is commonly thought not to have relied on scarcity as a ration-
ale, which clearly would have been misplaced. See id. at 770 n.4 (Brennan, Marshall, JJ.,
dissenting). In fact, however, the majority indirectly invoked that rationale at a critical
point in an inappropriate attempt to distinguish otherwise controlling precedent. See id.
at 74142.
198. See Pacifica, 438 U.S. at 742-51. Only Justice Rehnquist and Chief Justice Burger
joined Justice Stevens' full discussion here. The remaining members of the majority, Jus-
tices Powell and Blackmun, concurred in the conclusion that,the Commission's Order did
496 FORDHAM LAW REVIEW [Vol. 55
section 1464 on its face, because as "indecency is largely a function of
context," it limited itself to reviewing the Commission's actions as to the
particular broadcast.199
Regarding the constitutionality of regulating nonobscene, indecent
broadcasting, Justice Stevens purported to narrow the issue to the facts
of the case. He then, however, framed the question in the broadest possi-
ble terms: "whether the First Amendment denies government any power
to restrict the public broadcast of indecent language in any circum-
stances."200 As a result, he easily concluded that the Constitution man-
dates no such absolute prohibition and that, instead, the context of the
language is critical.2o1
The context that Justice Stevens considered, however, was merely the
generalized one of broadcasting's perceived characteristics of unique per-
vasiveness and unique accessibility to children. Based on these considera-
tions, sketched in one paragraph each,202 Justice Stevens concluded that
broadcasting presents special first amendment problems thatcan be ad-
dressed by treating it differently than other media.203 This abbreviated
rationale was enough for Justices Powell and Blackmun to join the ma-
jority, holding that the Commission may constitutionally regulate inde-
cent, nonobscene broadcasting.204
The Court thus not only wholly abdicated its proper role in statutory
and constitutional interpretation, it also failed to support its conclusions
with anything more than superficial analysis of the two basic rationales it
asserted. Moreover, although virtually apologetic in emphasizing that its
decision was confined to the facts and the program "as broadcast,"205 the
Court ignored or misstated factors that, according to its own analysis,
'should have led to a different result.
With respect to the possible presence of children in the audience, the
Court made no attempt to define "children." The Court also did not
consider at what times any particular number of children might be listen-
ing and relate this factor to permissible FCC regulation.206 The Court,
not violate the first amendment but explicitly rejected Justice Stevens' reasoning. See id
at 755-62.
199. See id. at 742; see also supra note 192.
200. Id. at 744 (emphasis added). Justice Stevens' apparent prediliction is shown by
his next sentence expressing his attitude toward the language in question: "For if the
government has any such power, this was an appropriate occasion for its exercise." Id
201. See id at 747-48.
202. 'Id at 748-50.
203. See id. at 750.
204. See id at 755-62 (Powell, Blackmun, JJ., concurring). This concurrence expands
somewhat on Stevens' analysis of the uniqueness of broadcasting.
205. See id at 734, 750; id. at 773 (Brennan, Marshall, JJ., dissenting). The Court
stresses the narrowness of its holding in one way or another no less than five times. See
id. at 734-35, 738-39, 742, 744, 750.
206. Cf Pacifica Found. v. FCC, 556 F.2d 9, 19 n.2 (1977) (Bazelon, C.J., concurring),
rev'd, 438 U.S.-726 (1978). Judge Leventhal, dissenting from the Court of Appeals opin-
ion, suggested that issue was not joined as to the Commission's determination that chil-
dren were undoubtedly in the audience when the Carlin monologue was broadcast. See
1987]
;for example, i
'day, when on
Morever, whi
0: authority •
children's ge:
?supervised ac(
therefore fail(
• rted the rig
supplanting p
S k
Instead, the
is Ginsberg.2'
objectionable
(neral, undii
could also be
_least tried to
ossed over i
common sens
M, at 37 n.17 (L
':vagueness' and of
1,1
.the Supreme Co
'Concurring).
r: Current statis
°Ltelevision viewin
'Nielsen Co., Nie
when teenagers
207. Compare
dards vaguely d
..(Leventhal, J., d
doubtedly in the
208. See FCC
209. Compare
,exposure of thei
ziPaciflca 556 F.21
'of `latchkey chi]
210. See Pac jj
211. See id at
n ,note 212.88See. Gins
The Com
earlier had raise(
`rSee Erznoznik v
Pacifica specifics
:dis,
the Miller standssenting)t
2d at 28-29 n.3
v'FCC, 515 F.2(
Thiproblem des
'`sed: to invoke G
;214. See Pacifi
'25. See id at
y a functi
ctions as
0
rk,
i•:..
scene, ind= :,,{,
;ue to the"?
broadest k
xent any pow
n any circ „
istitution ,`.'
context ofth�
vas merely the
of unique per;
tese consider,
:oncluded that
iat can be ad=
is abbreviated
join the ma=
regulate inde-.,'
Af'yr::
,t‘
e in statuto •
:s conclusio0;N3 •
c rationales it
f'
En_-; f4.
sizing that its. z
dcast, "205
the'�<<
Dwn analysis;'
audience, the
also did not
ght be listen-zi
' The Court;l
{coning. See id'
on is shown byn
on: "For if till);
{ exercise." IV
ence expands
:). The Court,'
ve times. See;i.
concurring),',
Appeals opin-L�
tion that chil-•
:
roadcast. See ` ±
x
THE SIGNAL CABLE SENDS
497
for example, ignored that the broadcast took place at 2.P.M. on a school
day, when one reasonably might expect most children to be in schoo1.207
Morever, while acknowledging the paramount interest of parents' claims
to 'authority in their own households,208 the Court did not distinguish
children's general access to radio and television from children's un-
supervised access, which was the only relevant question.209 The Court
therefore failed to recognize that its decision denigrated rather than sup-
ported the right of parents to control the upbringing of their children by
supplanting parental discretion and authority with governmental fiat.21°
Instead, the Court impliedly relied on the variable obscenity doctrine
in Ginsberg.211 Ginsberg, however, arose in the context of direct sale of
objectionable material to minors.212 Pacifica, conversely, dealt with a
general, undifferentiated distribution of material intended for adults that
could also be obtained by children.213 Justices Powell and Blackmun at
least tried to deal with this distinction,214 but the plurality's opinion
glossed over it.215 Thus the Court concluded in a footnote, contrary to
common sense and long-standing principle, that the Commission's action
id. at 37 n.17 (Leventhal, J., dissenting). But the issue certainly went to the heart of the
vagueness and overbreadth of the Commission's Order, which was properly reviewable by
the Supreme Court on first amendment grounds. See id at 17, 19 n.2 (Bazelon, C.J.,
concurring).
Current statistics show that the percentage of children of ages two to eleven in the
television viewing audience has declined from 21% in 1970 to 14% in 1984. See A.C.
Nielsen Co., Nielsen Report on Television 4 (1985). For statistics of the days and hours
when teenagers and children are watching television, see id. at 8-9. See infra note 324.
207. Compare Pacifica, 556 F.2d at 19 n.2 (Bazelon, C.J., concurring) (FCC's stan-
dards vaguely depend on when children may be in the audience) with id. at 37 n.17
(Leventhal, J., dissenting) (issue not joined as to FCC's finding that children were un-
doubtedly in the audience).
208. See FCC v. Pacifica, 438 U.S. 726, 749-50 (1978).
209. Compare id. at 770 (Brennan, Marshall, JJ., dissenting) (some parents might find
exposure of their children to the Carlin monologue both healthy and desirable) with
Pacifica, 556 F.2d at 34 n.6 (Leventhal, J., dissenting) (reference to the alleged prevalence
of "latchkey children" who often are home alone during the day).
210. See Pacifica, 438 U.S. at 769-70 (Brennan, Marshall, JJ., dissenting).
211. See id. at 749-50; see also supra notes 87-90 and accompanying text.
212. See Ginsberg v. New York, 390 U.S. 629, 632-33, 671-72 (1968); see also supra
note 88.
213. The Court also ignored the fact that Ginsberg preceded Miller and that the Court
earlier had raised the question of what portion, if any, of Ginsberg had survived Miller.
See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n.10 (1975). The dissent in
Pacifica specifically raised this issue, see Pacifica, 438 U.S. at 767-68 (Brennan, Marshall,
JJ., dissenting), that the majority ignored even in the face of a substantial argument that
the Miller standards incorporate the possibility of exposure to juveniles. See Pacifica, 556
F.2d at 28-29 n.30 (Bazelon, C.J., concurring); Illinois Citizens Comm. for Broadcasting
v. FCC, 515 F.2d 397, 418 n.48, 420 n.53 (D.C. Cir. 1975) (statement of Bazelon, C.J.).
The problem deserved more careful treatment than the two sentences that the majority
used to invoke Ginsberg. See Pacifica, 438 U.S. at 749-50.
214. See Pacifica, 438 U.S. at 758-59 (Powell, Blackmun, JJ., concurring).
215. See id at 749-50. -
498 FORDHAM LAW REVIEW [Vol. 55
would not "reduce adults to hearing only what is fit for children."216
The Court's discussion of the pervasiveness of radio, particularly in the
privacy of one's home, is equally deficient. The Court distinguished an
individual having to accommodate himself to public confrontation with
indecent, offensive material, and the intrusion of such material into his
home.217 But the Court never analyzed whether radio is more properly
considered an invader into the home or an invited guest. As the dissent
put it, an individual's decision to switch on and listen to public broad-
casting is a "decision to take part ... in an ongoing public discourse."218
Moreover, as the Court previously had noted, in contrast to other media
"[t]he radio can be turned off.s219 The substantial first amendment inter -
216. Id at 750 n.28; see id. at 760-61 (Powell, Blackmun, JJ., concurring). But see id.
at 768-69 (Brennan, Marshall, JJ., dissenting).
The principle that government cannot reduce the adult population's first amendment
rights to those appropriate for children is set out in Butler v.. Michigan, 352 U.S. 380,
383-84 (1957). See Bolger v. Youngs Drug Prods. Corp., 463, U.S. 60, 73-74 (1983)
("[t]he level of discourse reaching [an adult's] mailbox simply cannot be limited to that
which would be suitable for a sandbox"); Pinkus v. United States, 436 U.S. 293, 297
(1978) (the community standard for judging obscenity should be restricted to adults and
not include children).
The Court's reliance on the availability of Carlin's message in other media for adults
who wish to hear it, see Pacifica, 438 U.S. at 750 n.28; id. at 760 (Powell, Blackmun, JJ.,
concurring), was also factually inaccurate, see id at 774-75 (Brennan, Marshall, JJ., dis-
senting), and legally inappropriate. See -Schad v. Borough of Mount Ephraim, 452 U.S.
61, 76-77 (1981) (" `[o]ne is not to have the exercise of his liberty of expression in appro-
priate places abridged on the plea that it may be exercised in some other place' ") (quot-
ing Schneider v. New Jersey, 308 U.S. 147, 163 (1939)). Accord Southeastern'Promotions,
Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (availability of alternative forum does not justify
restriction on use of a public forum); Preferred Communications, Inc. v. City of Los
Angeles, 754 F.2d 1396, 1410 (9th Cir. 1985) ("an otherwise invalid restriction on pro-
tected activity is not saved by the availability of other means of expression"), aff'd on
narrower grounds, 106 S. Ct. 2034 (1986).
217. See Pacifica, 438 U.S. at 748-49; see also id at 759 (Powell, Blackmun, JJ., con-
curring).
Even so, the Court ignored that the issue of privacy in the home cuts both ways. On
the one hand, if one considers broadcast indecency as being thrust on unwilling and em-
barrassed recipients, then it seems particularly egregious that this offense occurs in the
home, where an individual should enjoy the greatest degree of privacy and serenity from
the outside world. On the other hand, the momentary offense and embarrassment might
be less because it occurs in the privacy of the home, rather than in public and in the
company of others. Some people who would be uncomfortable sitting through an "X" -
rated film in a theater might not hesitiate to watch it at home. Thus, the social setting in
which one encounters indecent language or pictures may have a considerable effect on
one's offense and embarrassment. If this is true, then the encounter in private, at home,
may be more tolerable than in public. See Pacifica Found., 56 F.C.C.2d 94, 107 n.8
(Robinson, Hooks, Comm'rs, concurring).
218. FCC v. Pacifica Found., 438 U.S. 726, 764-65 (1978) (Brennan, Marshall, JJ•
dissenting). See Pacifica Found. v. FCC, 556 F.2d 9, 17 (D.C. Cir. 1977), rev'd, 438 U.S.
726 (1978); id. at 26 (Bazelon, C.J., concurring).
219. Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974) (quoting Packer
Corp. v. Utah, 285 U.S. 105, 110 (1932)). The dissent, see Pacifica, 438 U.S. at 765-66
(Brennan, Marshall, JJ., dissenting), and the court of appeals, see Pacifica, 556 F.2d at 17;
id at 26 (Bazelon, C.J., concurring), made this point, thereby dispelling any notion of a
'captive audience' analysis applied to broadcasting. But see Pacifica, 438 U.S. at 759
1987]
vests at stake, the
venience in swit
especially so bec
sive broadcast la
aproper warnin
(Powell, Blackmun,
offensive" language
.• EAs the first "dirty"
tamed in something
};t a 'ubstantial portion
. 'ice 1�
;ir(made no effort to ti
•'V 220. Because of t
,the Court focused c
Pacifica, 438 U.S. a
Fiist, the Court sew
,monologue. See id.
;+ �ment." See id. at 75'
'night marginallyit
�•• iWAI woud hear s
Siever delineated, is
of the monologue is
:j phasis of the repetit
£.1. Second, the Court
ent result and ackno
tion of the audience
suggestin the likely
;;,. g
l gram, not one desig
r�(.tener-supported, the
and appreciate the si
,:sequently, their auc
(closed-circuit transn
;2.
°ability of others, inch
4.York City broadcast
221. Justice Steve
offensive programme
?:assault is to run awn
• (.i -remedy of an unwill
J �'W
Vis., Erznoznik v. City o�
. •'
i ` .; • $03 U.S. 15, 21-22 (1'
no first amendment l
for speech. It is pre
action that the Court
'law, higher fault sta
zaha,-414 U.S. 105,
? = intended and likely t
U.S. 254, 279-81 (15
''t Justice Stevens als
�„Cdoes not give th
[occurred].” Pacificc
voluatary decision tc
substantially more it
cher party. The one
and even threatening
citation to the very c
°See' id at 749 n.27.
. " A far more apt co
71.
children.'?, 6
icularly'is=
istinguishedtari
rontation
aterial *Os
more pr'ope=iy
As the dissen
public broad.
discourse:'?.8'
to other media
endment inter.`
' g). But see is t'
s firs a d�ggt .
an,5. 380;"
60, 73-74 (1983)'7
be limited to that
36 U.S. 293, 297;x';
cted to adults andr:r.
media for adults
11, Blackmun, JJ,'
Marshall, JJ.,'
phraim, 452 U.S.
pression in apprq�'`
er place' ") (quot...
tern Promotion
m does not jusfifi
c. v. City of 'Ios'
estriction on
ession"), affd 01,
ackmun, JJ., con-
is both ways. On`
nwilling and eni: 1;o-;
nse occurs in tile*
and serenity from`
arrassment migl
ublic and in the
through an "X';'
e social setting
iderable effect on
private, at home,
C.2d 94, 107n8•,
an, Marshall, 0
, rev'd, 438 U.S.
(quoting Packer;..
8 U.S. at 765-66'.
a, 556 F.2d at 17;.
g any notion of a'i:',
438 U.S. at 7591'1'
1987] THE SIGNAL CABLE SENDS
499
ests at stake, therefore, easily should have outweighed the minimal incon-
venience in switching off a receiver or changing the station.' This is
especially so because the problem of momentary discomfort from offen-
sive broadcast language can be further mitigated, as it was in Pacifica, by
a proper warning preceding the broadcast.22'
(Powell, Blackmun, JJ. concurring) (adults should not be forced to absorb "first blow of
offensive" language in the home). Indeed one can imagine the scene in complainant's car.
As the first "dirty" word reached his—and his son's—ears, the dial could have been
turned in something approaching a nanosecond. Yet the complainant actually listened to
a substantial portion of the Carlin monologue. See Robinson, supra note 171 at 6 (parent
made no effort to turn off radio).
220. Because of the obvious self-help remedy available to an offended adult listener,
the Court focused on the problem of momentary offense to an unwilling listener. See
Pacifica, 438 U.S. at 748-49. But the Court was implicitly inconsistent in two respects.
First, the Court several times stressed the repetition of the offensive language in Carlin's
monologue. See id. at 729, 732, 739. The concurrence called it a "verbal shock treat-
ment." See id. at 757, 761 (Powell, Blackmun, JJ., concurring). Although such repetition
might marginally increase the probability that a random scanner landing on station
WBAI would hear something that offended him, this probabilistic effect, which the Court
never delineated, is far too theoretical and inconsequential. Rather, the repetitive nature
of the monologue is irrelevant to the problem of momentary offense. The majority's em-
phasis of the repetition simply disguised its own value judgment of the material.
Second, the Court noted that a closed-circuit transmission might have required a differ-
ent result and acknowledged that "[t]he content of the program ... affect[s] the composi-
tion of the audience." Id. at 750. The Court, nevertheless, ignored the facts before it
suggesting the likely nature of WBAI's audience. The broadcast was a serious adult pro-
gram, not one designed to attract children. Further, because Pacifica's stations are lis-
tener -supported, the bulk of their regular audience is composed of subscribers who know
and appreciate the sort of material that the stations broadcast. See supra note 127. Con-
sequently, their audience is highly non-random and, in fact, approximates that of a
closed-circuit transmission. Although these factors do not completely eliminate the possi-
bility of others, including children, tuning in, they probably largely explain why the New
York City broadcast elicited only a single complaint.
221. Justice Stevens dismissed as an inadequate remedy a listener's ability to turn off
offensive programming. He compared that argument to "saying that the remedy for an
assault is to run away after the first blow." Pacifica, 438 U.S. at 748-49. But the similar
remedy of an unwilling viewer averting his eyes was central to the Court's decisions in
Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11 (1975) and Cohen v. California,
403 U.S. 15, 21-22 (1971). Moreover, Stevens' analogy entirely misses the point. There is
no first amendment protection for assault and battery. There is, however, such protection
for speech. It is precisely because we need to give speech far more breathing space than
action that the Court consistently has developed and applied, as a matter of constitutional
law, higher fault standards for speech torts than for other torts. See. e.g., Hess v. Indi-
ana, 414 U.S. 105, 108-09 (1973). (exhortations of violence cannot be punished unless
intended and likely to produce imminent disorder); New York Times Co. v. Sullivan, 376
U.S. 254, 279-81 (1964) ("actual malice" standard for defamation of a public figure).
Justice Stevens also analogized that the ability to "hang up on an indecent phone call
. does not give the caller a constitutional immunity or avoid a harm that has already
[occurred]." Pacifica, 438 U.S. at 749. This comparison, however, fails to distinguish the
voluntary decision to engage in the impersonal, public discourse of broadcasting from the
substantially more intrusive nature of a private, unwanted telephone call initiated by an-
other party. The one-to-one nature of the phone call has far more potential to be offensive
and even threatening. The inappropriateness of Stevens' comparison is revealed by his
citation to the very different problem of harassing debt collection methods by telephone.
See id. at 749 n.27. _
A far more apt comparison is with the recent development of so-called "dial -a -porn."
i1
'
41,
r�f
500 FORDHAM LAW REVIEW
[Vol. 55
Instead of this sort of analysis, the Court cursorily relied on Rowan v.
United States Post Office,222 for its pervasiveness/privacy argument.223
The Court in Rowtrn upheld a federal statute allowing a householder to
require anyone who mails him advertisements for material the house-
holder deems erotically arousing or sexually
name from mailing provocative to remove his
Construing the statute andves�complete future m and gunfethe
re discretion
solely in the addressee and thereby avoiding any semblance of govern-
mental censorship, the Court rejected a constitutional attack on the stat-
ute. In doing so, the Court specifically analogized to the right of a radio
boring
Rowan thus undercuts rather than supports Pacifica
g
because it affirms
support any feature of oy �ernhis control over radio; it does not, however,
Finally, although the Court heavily emphasized the context of the pro -
or television viewer to t
am "as broadcast, "226 it failed to
moist the dial and thus stop an offensive or
COmmuniCat10II.224
an individual homeowner's autonomy and exercise of
discretion, exemplified
b
F . government censorship 25
gr
ant listened to the program not in a h in h consider it as heard. The complain-
ant
car where an adult is
normally present and
where
but
here the Court, in other contexts, consistently has
These telephone services, fora charge, provide the caller with a live or recorded explicit
description of actual or simulated sexual activity. The FCC has been attempting to re-
strict minors' access to such services either by limiting the hours of operation or requiring
prior payment for the calls by credit card. See Prohibitions Against
Obscene Material, 48 Fed. Reg. 43,348 1983 Pothe Transmission the
Transmission of Obscene Material, 49 Fed. Reg. (2,124 19 4)' Prohibitions and proposed
' rule); Common Carrier Transmission of Obscene Material, 6) (R d. Rnot. of eg. 49
(1984), reconsid. denied, 56 Rad. Reg. 2d (P & F) 934 (1984). Displaying id 4y
more sensitivity to the significant first amendment interests at stake than d the Supreme
Court in Pacifica, the Second Circuit voided the Commission's regulations. It reasoned
that the time -channeling provision was not the least restrictive m
purpose. See Carlin Communications, Inc. v. FCC, 749 F.2d 113, 121 22 (2d Cir.1198its
4)
[hereinafter Carlin I]. The Commission again tried unsuccessfully to develop constitu-
tional regulations. See Prohibitions Against the Transmission of Obscene Materials (sec-
ond notice of proposed rule), 50 Fed. Reg. 10,510 (1985) (Proposed Mar. 15, 1985);
Prohibitions Against the Transmission of Obscene Materials, 59 Rad. Reg. 2d (P & F)
225 (1985) (2d rep. & ord.) (requiringrevuse of special access codes or prepayment by credit ,
v. card for
d787ial-a-porn
Fp r846, c 56 (2dd anndrremanded
8 nded sub nom. Carlin Communications, Inc.
fled to consider available alternatives in New York Telephone er lCompany territory). The
III (Commission again
Commission has embarked on a "final triparound."
Rulemaking, (Current Service) See Third Notice of Proposed
e Carlin Rad. Reg. 2d (P & F) 79:1, 79:8 n.15 (July 18, 1986). .But
lin Communications, Inc. v. Southern Bell Tel. and Tel. Co., 802 F.2d 1352 (11th
Cir. 1986) (phone company, a privately owned public utility, may deny access over its
non common carrier "Dial -It" services to a dial -a -porn provider to protect its corporate
image). -
222. 397 U.S. 728 (1970).
223. Pacifica, 438 U.S. at 731 n.2.
224. See Rowan, 397 U.S. at 737.
225. See Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 418 n.48
(D.C. Cir. 1975) (statement of Bazelon, C.J.); see also Bolger v. Youngs Drug Prods.
Corp.1983).
6. FCC v. Pacifica(438 U.S. 726, 735, 742 (1978).
987]
eatai.7
•Plam
;women'
`ately ch
;, wearing
door me
avert thi
offense. 2:
Per.ha]
casme invcby
.ter
.,a r
what wa,
tle dou
'oof of 1
discarded
z_, 227. See,
ception to f
132,153'228. The
(1!
California, 4
,on the one h
'• id. at 759
'dissenting).
The Cour
Court's obsc
S1969), the r
terdicting its
Black surmis
?`books in his
United States
1g). Accord
" :( ) (Doug
229. See F
Oda fear b
.,��-, y a1
=.?APParent Lia
h; station WXP1
casts of rather
lis^'Pacifica Founc
Shakespeare ti
rgadcasting.
38 U.S. 726
Phec
contrrary,
e.:Commissic
u6 of indecei
.� p.2 0 438 U.S.
231. L. Tribe
Bute Bd. of Ph
trh-
1
h
5
relied on Rowanrivacy argument:
ng a householder to
material the ho `:'
;ative to remove.::
to the householder.
Lnfettered disciehon,
:mblance of govern
d attack on the staff`:
the right of a radio
a offensive or boring<
an supports Pacifica
omy and exercise of.
does not, however,
e context of the pro-,;;::
ard. The complain?
ar where an adult is;:
;xts, consistently has,
live or recorded explicit;
;s been attempting to re",.;'. 4
of operation or requiriag,l?,
iinst the Transmission oft
Prohibitions Against the=
lot. of inq. and proposed;
[tad. Reg. 2d (P & F)
Displaying considerably''i ,
ike than did the Supreme1.
regulations. It reasoned ,'1''
e means of achieving its
13, 121-22 (2d Cir. 1984)
'ally to develop constitu-
f Obscene Materials (sec-
roposed Mar. 15, 1985); "t
;9 Rad. Reg. 2d (P & F) �F
or prepayment by credit %s,
[in Communications, Inc.
II] (Commission again >;
Company territory). The
iird Notice of Proposed
n.15 (July 18, 1986). But
Co., 802 F.2d 1352 (11th
may deny access over its . `6
:r to protect its corporate ;
515 F.2d 397, 418 n.48
• v. Youngs Drug Prods.
'1
.:M
THE SIGNAL CABLE SENDS
501
maintained that the expectation of privacy is considerably less than in the
home.227 Hence, the Court's decision led to an absurd conclusion. Com-
plainant and his son were entitled to be completely protected from even
momentary exposure to the Carlin monologue on the car radio; immedi-
ately changing stations or turning off the radio was not a sufficient rem-
edy. Yet, if they stopped in front of Cohen as he crossed the street
wearing his emblazoned jacket, or if they drove past Erznoznick's out-
door movie theater, the first amendment would demand that they just
avert their eyes or otherwise accommodate themselves to the unwanted
offense.228
Perhaps the unsupportable result in Pacifica was to be expected. The
case involved a sensitive topic, and was decided on the last day of the
term by a sharply divided Court faced with the hyperbolic specter of
what was about to invade living rooms across America.229 There can be
little doubt, however, that the "Court's attempt to unstitch the warp and
woof of First Amendment law"23° richly deserves to be condemned and
discarded as a "derelict in the stream of the law.s231 To a good degree
227. See, e.g., California v. Carney, 471 U.S. 386 (1985) (automobile search is an ex-
ception- to fourth amendment warrant requirement); Carroll v. United States, 267 U.S.
132, 153 (1925) (distinguishing search of house from search of vehicle).
228. The Court glossed over in footnotes this glaring contradiction between Cohen v.
California, 403 U.S. 15 (1971) and Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)
on the one hand, and Pacifica on the other. See Pacifica, 438 U.S. at 747 n.25, 749 n.27;
cf id. at 759 (Powell, Blackmun, JJ., concurring); id. at 764-66 (Brennan, Marshall, JJ.,
dissenting).
The Court's anomalous position is reminiscent of Justice Black's comment on the
Court's obscenity jurisprudence after it upheld, in Stanley v. Georgia, 394 U.S. 557
(1969), the right to private possession and use of obscenity in the home while still in-
terdicting its importation and distribution for such purposes. See id. at 565-68. Justice
Black surmised that Stanley perhaps is "good law only when a man writes salacious
books in his attic, prints them in his basement, and reads them in his living room:"
United States v. Thirty -Seven Photographs, 402 U.S. 363, 382 (1971) (Black, J., dissent-
ing). Accord United States v. 12 200 -Ft. Reels of Super 8mm. Film, 413 U.S. 123, 137
(1973) (Douglas, J., dissenting).
229. See FCC v Pacifica, 138 U.S. 726, 744 n.19 (1978). The Commission played to
this fear by attaching to its petition for certiorari a copy of its recently issued Notice of
Apparent Liability to a university radio station, see Trustees of the Univ. of Pa. Radio
Station WXPN (FM), 57 F.C.C.2d 782 (1975), containing extended examples of broad-
casts of rather puerile and gross sexual material. See Petition for Writ of Certiorari at 17,
Pacifica Found. v. F.C.C., 438 U.S. 726 (1978). Pacifica countered by an addendum to its
brief listing many examples from great literary works such as the Bible, Chaucer, and
Shakespeare that could come within the FCC's definition of indecent and be banned from
broadcasting. See Brief for Pacifica Foundation, Addendum, Pacifica Found. v. FCC,
438 U.S. 726 (1978); see also Brief of the American Civil Liberties Union et al., Amici
Curiae, Pacifica Found. v. FCC, 438 U.S. 726 (1978). Despite the Court's assertions to
the contrary, see supra note 192, and the limits it placed on its opinion, all concerned—
the Commission, Pacifica, amici and the Court itself—were clearly arguing. about the
issue of indecency in broadcasting generally, not just a particular broadcast.
230. 438 U.S. at 775 (Brennan, Marshall, JJ., dissenting).
231. L. Tribe, American Constitutional Law 68 (Supp. 1979) (citing North Dakota
State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 167 (1973)).
t;
l!
F
qi
['"
11,1,
502 FORDHAM LAW REVIEW
[Vol. 55
this is what has happened.232 To the extent, however, that Pacifica leaves
open the door for the possible restriction of indecent though non -obscene
broadcasting, it leaves behind a troublesome legacy. Nowhere is this
more apparent than in current attempts to control indecency on cable.
II. THE CABLE INDECENCY CASES AND ASSERTED DISTINCTIONS
BETWEEN CABLE AND BROADCASTING
It is not surprising that the increasing maturity of cable television has
spawned numerous disputes over allegedly indecent programming. The
232. See, e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983). But see
FCC v. League of Women Voters, 104 S. Ct. 3106, 3117 n.13 (1984); New York v. Fer-
ber, 458 U.S. 747, 757, 765 (1982).
Until very recently, the desuetude into which Pacifica has fallen was most evident at
the FCC. Contemporaneous with its initial consideration of Pacifica, the Commission
sanctioned a university radio station for obscene and indecent language in on -the -air con-
versations with listeners. See Trustees of the Univ. of Pa., Radio Station WXPN(FM), 57
F.C.C.2d 793 (1976) (designation of pub. hearing for lic. ren.). But immediately after the
Supreme Court announced its opinion in Pacifica, the Commission interpreted it as af-
fording the FCC "no general prerogative to intervene in any case where words similar or
identical to those in Pacifica are broadcast over a licensed radio or television station. We
intend strictly to observe the narrowness of the Pacifica holding." WGBH Educ. Found.,
69 F.C.C.2d 1250, 1254 (1978) (mem. op. & ord.). Thereafter, the Commission consist-
ently maintained this position. See Dena Pictures, Inc., 98 F.C.C.2d 670, 670-71 (1984)
(Rev. Bd.); Kenneth L. Gilbert, 92 F.C.C.2d 126, 128 n.5 (1983) (Rev. Bd.) (lic. revoc.);
David Hildebrand, 92 F.C.C.2d 1241 (1983) (Rev. Bd.) (reversing prior license revoca-
tion); Decency in Broadcasting, Inc., 94 F.C.C.2d 1162 (1983) (mem. op. & ord.);
Pacifica Found., 95 F.C.C.2d 750, 759-61 (1983) (mem. op. & ord.).
An example of the Commission's general eschewing of any censorship role was its
recent refusal to designate programming issues as part of a comparative license renewal
hearing for a radio station despite the station's history of racial and anti-Semitic attacks.
See Cattle Country Broadcasting, 58 Rad. Reg. 2d (P & F) 1109, 1112 (1985) ("It is well
settled that the Commission cannot use its regulatory power to rule material off the air
merely because the material may be offensive to many members of the broadcaster's audi-
ence."). Subsequently, however, the license was transferred to a competing applicant
pursuant to a settlement agreement. See Broadcasting, Sept. 8, 1986, at 129.
In a similar vein the Commission substantially narrowed its inquiry into the character
of its licensees and permit applicants. See Character Qualifications in Broadcast Licens-
ing, 102 F.C.C.2d 1279 (1986) (rep., ord., & policy stmt.), reconsid. denied, 61 Rad. Reg.
2d (P & F) 619 (1986), pet. for rev. pending sub nom. National Ass'n for Better Broad-
casting v. FCC, No. 86-1179 (D.C. Cir. filed Mar. 17, 1986).
Currently in the indecency area, in Video 44, 102 F.C.C.2d 408, 411 (1985) (Rev. BO
(mem. op. & order), a prima facie showing was made, under Miller and Illinois Citizens,
of obscene telecasts on subscription television service. On its own motion, however, the
Commission reversed this decision. It stated, "We believe that the Commission should
not attempt to determine in the first instance whether material is obscene, but rather,
should defer to local authorities." Video 44, 103 F.C.C.2d 1204, 1210 (1986) (mem. op.
& ord.). The Commission, however, soon began investigating three instances of allegedly
indecent radio' broadcasts. See N.Y. Times, Nov. 12, 1986, at 11, col. 1. In this context
its new general counsel observed: "Any time we get into the First Amendment area, We
ought to proceed cautiously .... I don't think we should cast our net too wide." Broad-
casting, Jan. 5, 1987, at 64. Nevertheless, the Commission has just voted to vigorouslY
enforce the indecency standard established in Pacifica This likely will lead to new court
challenges of the application of this standard. See FCC Acts to Restrict Indecent Pro-
gramming, N.Y. Times, April 17, 1987 at Al, col. 3.
1987]
language prob]
brings into the
variety of sexu
ally oriented sl
,Land similar prc
with the basic c
is arising in an
'Prpornographyn i
'Crating number
233. See general
Battle Intensjing
;2; Landro, Public
20, 1982, at 1, col.
col. 2; Schwartz, 7
at 44; TV Guide, 1
These articles in
.bly. On one of the
cent of the film schi
s •Cable TV, N.Y. Ti
Home Box Office's
however, will show
' tion Although
ming format, The 1
)'i showing of "X" -rat
Sion, Dec. 15, 1986
22
43.
ls,Ft:.
234. The concern.
•` and Citizens for De
.on Cable TV, N.Y.
feminist interests cL
Kcal legislation to ba
7., women. For discuss
i, and the First Amens
;(1984); Hoffman, 1
`;MacKinnon, Porno
:Stone, Anti-Pornogr
Pol'y, 461 (1986); I
Li Rev. 460 (1984);
1 i .89. The first tour
odinance prohibitir
ion of women." .5
(7th Cir. 1985) (the
'" Feu then indicative
Attorney General's i
Comm'n on Pornol
;?Civil Rights" Ordin
POtrgraphy Regula
Censorsh: Debate: I
Coininissfon on Porn
rental stores
movies. See Lindse'
Times, June 3, 1985
!jar'. LJ., July 28, 1
mto`:"including advisc
N•C,
supply c
iat Pacifica leaves
)ugh non -obscene
Nowhere is'tIi
ecency on cable. •'
DT-STINCTIONS :i
G
r,
•
•
ible television hast;M
'ogramming. The ' •
i.�•
,,;
0, 74 (1983). But see'
4); New York v. Fer=;s
•
was most evident at
fica, the Commissioij
age in on -the -air con- iF
ition WXPN(FM),
immediately after the`
n interpreted it as af-
here words similar or'. A?
television station. We
WGBH Educ. Found.;
Commission consist-:::Uz}
2d 670, 670-71 (1984)7;:}
Rtev. Bd.) (lic. revoc.);
prior license revoca- i S
(mem. op. & ord.);
i.).
:nsorship role was its'
Lrative license renewal
i anti-Semitic attacks. _
112 (1985) ("It is well
Lle material off the air,
:he broadcaster's
L competing applicant
)86, at 129.
airy into the character
s in Broadcast Licens- >`
denied, 61 Rad. Reg ,4
ss'n for Better Broad -;,4
411 (1985) (Rev. Bd.);.<;
rr and Illinois Citizens,
motion, however, the+
ie Commission should
is obscene, but rather,;)
1210 (1986) (mem. op „,
e instances of allegedly
col. 1. In this context;;.
. Amendment area, are .;
net too wide." Broad- ,;'
ist voted to vigorously
will lead to new court':;'
Restrict Indecent Pro-
';
rf
Yf4
3
1987]
THE SIGNAL CABLE SENDS 503
language problem of radio is compounded by the visual signal cable
brings into the home. In most cable communities, the service offers a
variety of sexually explicit material, including "R" -rated movies, sexu-
ally oriented shows on "adult" channels such as The Playboy Channel,
and similar programs on certain public access channels that often come
with the basic cable subscription.233 Moreover, the cable indecency issue
is arising in an atmosphere of generally heightened concern over alleged
pornography in all media.234 These factors have contributed to a prolif-
erating number of court battles over indecent cable programming.
233. See generally Weinstein, Sex and Cable, Cablevision, Feb. 11, 1985, at 28; Smith,
Battle Intensifying Over Explicit Sex on Cable TV, N.Y. Times, Oct. 3, 1983, at Al, col.
2; Landro, Public Access TV in New. York Tends Toward Sex, Sadism, Wall St. J., Dec.
20, 1982, at 1, col. 4; Tell, Cable TV's Sex Problem, The Nat'l L.J., Feb. 15, 1982, at 1,
col. 2; Schwartz, The TV Pornography Boom, N.Y. Times Sept. 13, 1981, § 6 (Magazine),
at 44; TV Guide, Mar. 28, 1981, at 5.
These articles indicate that the nature of sexual cable programming varies considera-
bly. On one of the major premium movie channels, Home Box Office, about forty per
cent of the film schedule is "R" -rated. See Smith, Battle Intensifying Over Explicit Sex on
Cable TV, N.Y. Times, Oct. 3, 1983, at Al, col. 2, at C22, col. 4 (citing president of
Home Box Office's Entertainment Division). Only a few cable systems in the country,
however, will show "X" -rated films. See id. (citing National Cable Television Associa-
tion). Although apparently abandoning a recent attempt at a more mainstream program-
ming format, The Playboy Channel does not plan a "sex -on -demand" philosophy or the
showing of "X" -rated movies. See Motevalli, Playboy and the Erotica Dilemma, Cablevi-
sion, Dec. 15, 1986 at 24; Playboy Tries Revitalization, Broadcasting, Nov. 25, 1985, at
42, 43.
234. The concern often is expressed most vocally by groups such as Morality in Media
and Citizens for Decency Through Law. See Smith, Battle Intensifying Over Explicit Sex
on Cable TV, N.Y. Times, Oct. 3, 1983, at Al, col. 2, C22, col. 5. Some, but not all,
feminist interests claim adverse effects from pornography. These groups have sought lo-
cal legislation to ban pornography as sexual subordination of, or discrimination against,
women. For discussions of this current controversy, see generally Emerson, Pornography
and the First Amendment: A Reply to Professor MacKinnon, 3 Yale L. & Pol'y Rev. 130
(1984); Hoffman, Feminism, Pornography, and Law, 133 U. Pa. L. Rev. 497 (1985);
MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1 (1985);
Stone, Anti -Pornography Legislation as Viewpoint -Discrimination, 9 Harv. J.L. & Pub.
Pol'y, 461 (1986); Note, Anti -Pornography Laws and First Amendment Values, 98 Harv.
L. Rev. 460 (1984); Sunstein, Pornography and the First. Amendment, 1986 Duke L.J.
589. The first court to consider such an approach condemned as unconstitutional an
ordinance prohibiting pornography defined as the "graphic sexually explicit subordina-
tion of women." See American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324, 328
(7th Cir. 1985) (the ordinance is "thought control"), of 'd mem., 106 S. Ct. 1172 (1986).
Further indicative of the general trend is the recently released Final Report of the
Attorney General's Commission on Pornography. See U.S. Dep't of Justice Att'y Gen.'s
Comm'n on Pornography, Final Report (1986) [hereinafter Final Report]. Cf Lynn,
"Civil Rights" Ordinances and the Attorney General's Commission: New .Developments in
Pornography Regulation, 21 Harv. C.R.-C.L. L. Rev. 27 (1986); ACLU, Polluting the
Censorship Debate: A Summary. and Critique of the Final Report of the Attorney General's
Commission on Pornography, Public Policy Report, July 1986. The proliferation of video-
cassette rental stores also has led to local crackdowns on distribution of sexually explicit
movies. See Lindsey, Outlets That Offer Explicit Sex Tapes Facing Prosecution, N.Y.
Times, June 3, 1985, at Al, col. 1; see also Adams, Hometown Porn Wars Escalating,
• Nat'l L.J., July 28, 1986, at 1, col 4. And the record industry now has been intimidated
into including advisory labels on album and cassette covers identifying recordings that
contain supposedly offensive lyrics. See Broadcasting, Nov. 4, 1985, at 97; Congress All
F;t
I
504 FORDHAM LAW REVIEW
[Vol. 55
A. The Cable Indecency Cases
Cable operators generally function under a municipal franchise
awarded through a competitive bidding process. Consequently, efforts to
restrict indecency on cable usually involve prohibitory local ordinances
or contractual provisions in the franchise agreement, sometimes backed
by similar state statutes.235 This regulatory scheme puts the cable opera-
tor in the difficult position of acceding to the restrictions or risking his
franchise. Although operators have not always been at the forefront of
challenges to this content control, a number have attacked such restric-
tions. These cases unfortunately set the tone for differentiating between
cable and broadcasting. One such case, however, Home Box Office v.
Wilkinson,' is an exception. The remarkable simplicity of the court's
analysis demonstrates the feasibility of an alternative approach.
In Home Box Office, cable telvision distributors and franchisees chal-
lenged, on its face, a 1981 Utah statute making it a crime to " `knowingly
distribute by wire or cable any pornographic or indecent material.' "237
In holding the statute unconstitutional, the district court only considered
whether Utah's attempt to proscribe indecent cable programming went
beyond the obscenity boundaries established in Miller. The court did not
consider the specific medium of cable, its accessibility in the home, or the
potential for children in the audience.238 Indeed, although the state re-
lied on Pacifica, the court ignored it. Instead, it strongly indicated that
there is no legal distinction between broadcast and cable television or
other video media that is relevant to control of indecent programming.239
Rather the court simply concluded that the statute exceeded the Miller
Shook Up Over Rock Lyrics, Broadcasting, Sept. 23, 1985, at 28; Holden, Recordings Will
Carry Advisory Lyrics, N.Y. Times, Aug. 9, 1985, at 17, col. 5.
The citizens of Maine, however, recently defeated, by a more than 2 to 1 margin, a
referendum to make selling or promoting obscene material illegal. See Wald, Maine Anti -
Obscenity Plan Soundly Defeated, N.Y. Times, June 12, 1986, at 17, col. 1. And the
Oregon Supreme Court has just virtually eliminated all obscenity prosecutions in that
state. See State v. Henry, 302 Or. 510, 525, 732 P.2d 9, 17-18 (1987).
235. For a description of federal regulation in this area under the 1984 Cable Act, 47
U.S.C. § 529-559 (Supp. III 1985), see infra notes 261-82 and accompanying text.
236. 531 F. Supp. 987 (D. Utah 1982).
237. See id at 989 (quoting Utah Code Ann. §§ 76-10-1229(1) (Supp. 1981)). The
terms "pornographic" and "indecent" were defined in related statutes. Id. at 989-90.
238. The court ruled simply: "States may not go beyond Miller in prescribing criminal
penalties for distribution of sexually oriented material. For better or worse, Miller estab-
lishes the analytical boundary of permissible state involvement in the decision by HBO
and others to offer, and the decision by subscribers to receive, particular cable TV pro-
gramming." Id at 994-95 (emphasis in original) (footnotes omitted).
239. Construing the statute as possibly criminalizing the presentation over cable of
"R" -rated, Academy Award -Winning films that could be exhibited, without violating the
statute, in theaters, on broadcast TV, or on videotape or videodisc in the home, the court;:'
rhetorically asked, "[W]hat is the rational basis for discriminating against one technol
ogy?" Id at 996 n.18.
In a later pa.cage, without distinguishing broadcasting from cable, the court stated that
the transmission and delivery of nonobscene TV programming could not be prohibited by
a statute going beyond the Miller standard. See id at 997.
a•
1
7i
1987]
boundaries, was
construction.24°
A few months
nce was again
;tanhe same result,
anto a comparisc
regulatory power
owever, found
in which the cha
1. User need
2. User hold
subscriptions.
3. Limited ac
4. Transmittg
5. User recei'
private cable.
6. User pays
7. User receis
coming attracti
8. Distributor
may add service
spectrum of sig
and choices.
9. Wires are p
The district cow
tions of the "[1]evel
boadcasting.243 A
include: whether tc
Viand whether to co:
cable viewer may c
ts•245 At both lel
strained, largely bec
.�r
:MI
240.; See id at 999.
241s Community Tele
�ial%1982).
;.„.;,,.fork; The Supremi
�,on;"and perhaps c
,750 (1978). Unfortu
t4 transmissions and
2� 3F'See Roy City, 55!
See id at 1168.
'*;:.'See id
5
24
:-'
;`J
oL:5
tunicipal franc
sequently, efforts:
ty local ording6.4
sometimes back
its the cable 654.
;ions or risking;
at the forefrOt, o
icked such reste-
rentiating betty
'ome Box O f, i `' y
city of the court's
approach.
1 franchisees chal
ne to " `knowin
;ent material.' "237
rt only considered'
rogramming wen:"
The court did not:;-;
1 the home, or the,
:nigh the state rel
gly indicated thaifp`'
able television ori,
programming.239
seeded the Mi11eT "
r' •
Iden, Recordings Will
ian 2 to 1 margin, a
se Wald, Maine Anti -
17,
col. 1. And the
prosecutions in that
37).
1984 Cable Act, 47
mpanying text.
(Supp. 1981)). The'.
:es. Id. at 989-90.
prescribing criminal
worse, Miller estab-
ie decision by HBO
cular cable TV pro-
).
ration over cable of . Y
vithout violating the'';
the home, the court .
Lgainst one technol-
:he court stated that
lot be prohibited by
•
X1987] THE SIGNAL CABLE SENDS
; 505
'-Aboundaries, was overbroad, and did not admit a narrower constitutional
'r c'onstruction.24°
:. A few months later, however, a very similar issue involving a city ordi-
.nance was again before the same court. This time, although it reached
;"•.the same result, the court significantly altered its analysis by launching
nto a comparison of broadcasting and cable.24' The city analogized its
1,
regulatory power to that of the FCC and relied on Pacifica. The court,
however, found Pacifica inapplicable. It noted the "important respects"
in which the characteristics of cable and broadcast television differ:242
Cable
Broadcast
1. User needs to subscribe. User need not subscribe.
2. User holds power to cancel User holds no power to cancel.
subscriptions. May complain to F.C.C.,
station, network, or sponsor.
3. Limited advertising. Extensive advertising.
4. Transmittal through wires. Transmittal through public
airwaves.
User appropriates signal from
the public airwaves.
User does not pay a fee.
User receives daily and weekly
listing in public press or
commercial guides.
Neither distributor nor
distributee may add services,
signals or choices.
5. User receives signal on
private cable.
6. User pays a fee.
7. User receives preview of
coming attractions.
8. Distributors or distributee
may add services and expanded
spectrum of signals or channels
and choices.
9. Wires are privately owned.
Airwaves are not privately
owned but are publicly
controlled.
The district court characterized these purported distinctions as reflec-
tions of the "[1]evels and degrees of choice" available with cable but not
broadcasting.243 At a primary level, the contractual choices cable offers
include: whether to subscribe initially, which cable services to accept,
and whether to continue the subscription.244 On a secondary level, a
cable viewer may choose among a larger number of channels and sub-
jects.245 At both levels, the court found broadcast viewers far more con-
strained, largely because the number of broadcasters is limited and they
240. See id at 999.
241. Community Television of Utah, Inc. v. Roy City, 555 F. Supp. 1164, 1167 (D.
Utah 1982).
242. Id The Supreme Court in Pacifica suggested possible differences among "radio,
television, and perhaps closed-circuit transmissions:" FCC v. Pacifica Found., 438 U.S.
726, 750 (1978). Unfortunately, this suggestion fosters attempts to liken cable to closed-
circuit transmissions and thus distinguish it from broadcasting.
243. See Roy City, 555 F. Supp. at 1170.
244. See id at 1168.
245. See id
•
'1J
11
i1
las,
*r
it
506 FORDHAM LAW REVIEW
[Vol. 55
must operate within the public interest standard.246
The court also distinguished broadcasting and cable by literally and
physically 'applying the Pacifica pervasiveness rationale.247 On the other
hand, the court could perceive no basis for treating a form of communi-
cation differently simply because it is pervasive in the sense of being re-
ceived in the home.24s . •
In short, the court found only Miller, and not Pacifica relevant. But
the district court's superficial analysis of the differences between cable
and broadcasting soon was adopted wholesale by other courts. It has
become virtually the "law of the case" in cable indecency matters. In
Cruz v. Ferre,249 for example, the court repeated almost verbatim the
above list of distinctions and stressed that a cable subscriber ostensibly
has greater viewing control than his broadcast counterpart.250 Such con-
trol includes a cable subscriber's decision whether or not to bring cable
into his home, his ability to avoid surprise in programming by consulting
monthly viewing guides, and his ability to protect immature viewers,
such as children, from unsuitable programming by the use of parental
lockboxes available free from the cable operator. The latter, in particular,
was for the court the "death -knell" of Pacifica's applicablility to cable.25
On appeal plaintiffs and amici continued to stress the asserted factual
distinctions between cable and broadcasting.252 The Eleventh Circuit,.
relying on this means of rendering Pacifica inapplicable, affirmed.253
When the issue resurfaced once more in Utah,254 another district court
246. See id. at 1168-69.
247. Thus, the court perceived a difference between broadcasting's electromagnetic
waves indiscriminately diffused through the "ether," and cable signals transmitted only
by invitation through wires. Id. at 1169. For a discussion of the inaccuracy of the term
"ether," see infra note 310.
248. As the Court stated:
The Court' finds great difficulty in distinguishing (other than the popcorn)
between going to the movies at a theater and having the movies come to me in
my home through electronic transmission over wire. The choice is mine. The
location is different. The content is the same. Why should the non -`indecent'
on Main Street be transmuted by ordinance and municipal definition into 'inde-
cency' in my home?
Roy City, 555 F. Supp. at 1170.
249. 571 F. Supp. 125 (S.D. Fla. 1983), aff'd, 755 F.2d 1415 (11th Cir. 1985).
250. See id. at 132.
251. See id.
252. Brief for Appellee Home Box Office, Inc. at 3, 10 n.1, 12-13, 27-30, 35-36, Cruz v.
Ferre, 755 F.2d 1415 (11th Cir. 1985) (No. 83-5588); Brief for Amicus Curiae National
Cable Television Ass'n, Inc., at 2-3, 4 n.1, 12-17, Cruz v. Ferre, 755 F.2d 1415 (11th Cir.
1985) (No. 83-5588); Brief of Amicus Curiae Motion Picture Ass'n of Am., Inc., at 12-15,
Cruz v. Ferre, 755 F.2d 1415_(11th Cir. 1985) (No. 83-5588).
253. Cruz v. Ferre, 755 F.2d 1415, 1415 (11th Cir. 1985). At least one plaintiff was i*
subsequently awarded attorneys' fees. See Broadcasting, Sept. 15, 1986, at 120.
254. The Utah Legislature passed, over the Governor's veto, a new act to control cable!,
indecency. See Utah Code Ann. §§ 76-10-1701 to 1708 (Supp. 19.86). The state con-
strued it as mere time, place, and manner regulation rather than prohibition. See Format's
Op. No. 83-001, Att'y Gen. of Utah 1, 4-5 (1983). In his veto message, the Governor',
noted that none of the channels showing "blue" movies or the like were operating in'
1987]
is found inapposite
'rto children 255
tions asserted in
cable is not an 1
vitation can IN
comodates pare]
A&The issue of c
the" appearance i
Linde has fanned
$' f
Utah. He also cited
tips cable viewers al
Matheson, Mar. 30,
20. 198lic s3).
,; Pubentiment :
;gf 61% to 39%, of
i,ablevision, Nov. 1!
"1•.255. Community
:1985), aff'd per curie
mem., 55 U.S.L.W.
opinion relies almo:
hence, however, whi
ciently similar to br
F:2d at 993, 1004-0'
456. Community
'257. Despite con:
Supreme Court. See
Broadcasting, Jan. ]
ummary affirmance
125), is binding pre
(1975). It does not,
written opinion rent
453 U.S. 490, 500 1
Courts approval of 1
'reasoning. Mandel 1
} ewers, 760 F.2d 12
, YDronenburg v. Ze
''cf.•1984). See generally em
't' 160-63 (2d ed.
At any rate, other
ous'legislative appro
aSystems Prepare
c.Ghee v. Village o
r)(agreement betw(
�' tinged); Gates v.
indicted cable operas
tinged by cable
only obscene n
cy. See supra
2582As of Novem
596'"sy,
stems a 16•
�Re.. '
Broadcas
enon;'Ban in Buffo
P
�� •.Hometown
o>fG�cox O
1985perat,oar
;1
by literally;�and..
47 On the, `pill'
rm of cotiim,
ense of bane e.
a relevant:'` .But
between cable'.
r courts. It:,ias
ncy matters.'•K
st verbatim `the'':
criber ostensibly
art250 Such ...
of to bring cable =:
g by consulting'
ature viewers,,
use of parental
ter, in particular;',
lility to cable.25i; ^,
sc,,.
asserted factual;.'
leventh Circuit,t=
aaffirmed.'
her district court:
•
•
g's electromagnetic;;
als transmitted only
accuracy of the term;'.
Sri the popcorn)
S come to me in
ice is mine. The
1e non -`indecent'
lotion into 'inde-
lth Cir. 1985).
27-30, 35-36, Cruz v.q.
Acus Curiae National
F.2d 1415 (11th Cir.;?'` ,
f Am., Inc., at 12-15,
t one plaintiff was;' ,.
1986, at 120. 1r- -
Ibv act to control cable'. , a
;986). The state con-' _,.•
thibition. See Formal fv
'essage, the Governor °=
ke were operating in
'41
THE SIGNAL CABLE SENDS 507
bund inapposite the Pacifica rationales of pervasiveness and accessibility
, to .children.255 The court relied on the same perceived factual distinc-
r.
irons asserted in the previous Utah cases and in Cruz. It concluded that
"" ' cable is not an uninvited intruder into the home "but an invitee whose
invitation can be carefully circumscribed."256 This factor, therefore, ac-
comodates parental concern for children.
The issue of cable indecency is not likely to be settled soon.257 Indeed,
The appearance in 1982 of The Playboy Channel on cable systems nation-
wide has fanned the controversy.258 Thus, although courts so far have
Utah. He also cited the differences between cable and broadcasting and the greater con-
trol cable viewers are assumed to have. Letter to Lt. Governor Monson from Governor
Matheson, Mar. 30, 1983, Utah S. Journal, Veto Override Session, 1117, 1119-20 (Apr.
20, 1983).
Public sentiment in Utah was reflected in the subsequent electoral defeat, by a margin
of 61% to 39%, of a proposed state criminal law controlling cable programming. See
Cablevision, Nov. 19, 1984, at 18.
255. Community Television, Inc. v. Wilkinson, 611 F. Supp. 1099, 1113-16 (D. Utah
1985), a}fd per curiam sub nom. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), afd
mem., 55 U.S.L.W. 3643 (U.S. Mar. 23, 1987) (No. 86-1125). The Tenth Circuit's brief
opinion relies almost entirely on the reasoning of the lower court. A lengthy concur-
rence, however, while agreeing that the Utah law is unconstitutional, finds cable suffi-
ciently similar to broadcasting to be subject to Pacifica type regulation. See Jones, 800
F.2d at 993, 1004-07 (Baldock, J., specially concurring).
256. Community Television, 611 F. Supp. at 1113.
257. Despite considerable expense, the State of Utah pursued the matter to the
Supreme Court. See Utah Seeks Supreme Court Review of Cable Programming Case,
Broadcasting, Jan. 12, 1987, at 149; Broadcasting, Apr. 22, 1985, at 10. The Court's
summary affirmance, see Wilkinson v. Jones, 55 U.S.L.W. 3643 (Mar. 23, 1987) (No. 86-
1125), is binding precedent for lower courts. See Hicks v. Miranda, 422 U.S. 332, 344-45
(1975). It does not, however, have the same authority before the Supreme Court as a
written opinion rendered after plenary consideration. Metromedia, Inc. v. San Diego,
453 U.S. 490, 500 (1981). Moreover, a summary affirmance represents the Supreme
Court's approval of the judgment below but does not necessarily adopt the lower court's
reasoning. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). See Hardwick v.
Bowers, 760 F.2d 1202, 1207-10 (11th Cir. 1985), rev'd, 106 S. Ct. 2841, 2843 n.4 (1986);
cf. Dronenburg.v. Zech, 741 F.2d 1388, 1391, rehearing denied, 746 F.2d 1579 (D.C. Cir.
\ 1984). See generally H. Hart & H. Wcschler, The Federal Courts and The Federal Sys-
tem 160-63 (2d ed. Supp. 1981).
At any rate, other states repeatedly have tried to restrict cable indecency through vari-
ous legislative approaches, and these efforts undoubtedly will continue. See Wolfe, Flor-
ida Systems Prepare to Fight 'Obscenity' Ban, Cablevision, Jan. 20, 1986, at 23; see also
McGhee v. Village of Vernon Hills, No. 83 C 2486 (N.D. 111. Mar. 25, 1985) (Kocoras,
J.) (agreement between cable operator and village to ban "X" -rated films successfully
challenged); Gates v. Ney, F.2d, at No. 85-3110 slip op. (6th Cir. 1986) (plea bargain by
indicted cable operator, who agreed not to show "X" -rated material or the equivalent,
challenged by cable subscriber but upheld by Sixth Circuit interpreting agreement to
reach only obscene material). And the FCC has just reinvigorated its efforts to control
indecency. See supra note 232.
258. As of November, 1986, The Playboy Channel reached about 600,000 subscribers
on 596 systems, a 16.7% reduction over the previous year. See Cable Programming Sta-
tus Report, Broadcasting, Dec. 1, 1986, at 66. For a description of the controversy, see
Shenon, Ban in Buffalo of Playboy TV is Sought, N.Y. Times, Oct. 29, 1984, at Bl, col. 4;
Adams, Hometown Porn Wars Escalating, Nat'l L.J., July 28, 1986, at 1, col. 4. See also
Wolfe, Cox Operator Drops Playboy Channel in Face of Obscenity Indictiments, Cablevi-
sion, Mar. 4, 1985, at 16 (indicted cable operator dropped The Playboy Channel because
508 FORDHAM LAW REVIEW [Vol. 55
1987]
kept cable free of indecency controls—albeit, as will soon be argued, for
the wrong reasons—cable clearly remains vulnerable to this sort of cen-
sorship 259 Unlike the FCC's actions against broadcasters, however, ma-
jor communications interests have been at the center of the cable
indecency controversy and most likely will remain there.
B. Indecency Provisions of the. 1984 Cable Act
Congress, moreover, has assured that cable indecency issues will con-
tinue to proliferate by addressing the matter in several. unclear and con-
fusing provisions of the 1984 Cable Act.260 To the extent these
provisions preclude or chill constitutionally protected expression, they
conflict with one of the basic purposes of the Act: to assure and en-
courage the "widest possible diversity" of cable programming 261
The most general obscenity provision of the Act is section 559, which
imposes a fine or imprisonment for the transmission by cable of matter
that is "obscene or otherwise unprotected by the Constitution."262
Although this provision apparently is intended to be the cable analogue
:of section 14
-.equally vagu
repeated in s
cable operate
!protected
snbj'ect to cc
essly adop
- .4 Jheless indica
standards, ev
=; cable prograa
1, clear that th
L changing cc
indecency sti
Sections 5:
are complicat
;cess channels
(forbidden to
shielded fror
them.269 A s
Y.'
able for publi
of threat of "prolonged and expensive litigation"). But see Cablevision, Aug. 26, 1985, at
20 (Oklahoma grand jury refused to indict cable operator for carrying The Playboy
Channel).
259. Although the Attorney General's Commission on Pornography was sharply di-
vided on the issue of statutory regulation of indecent films on cable, see Final Report,
supra note 234, at 398-400, a number of its recommendations advocate stricter control
over allegedly obscene cable programming. See id at 483-85, 520-23, 530-31, 573-82.
260. The 1984 Cable Act, 47 U.S.0 §§ 521 et seq. (Supp. III 1985), is the first direct
congressional grant of authority to the FCC to regulate cable: It represents a trade-off by
the cable industry of some journalistic freedoms for economic benefits. See Goodale, Is
the New Cable Law a Disappearing Act?, N.Y.L.J., May 10, 1985, at 1, col. 1, at 32
("some members of the industry.... trade[d] their First Amendment position and any
deregualtory power held by the FCC in exchange for rate deregulation and certainty of
license renewal"); FCC Starts Action on Revising Cable Rules, Broadcasting, Dec. 10,
1984, at 93, 94 (quoting FCC Chairman Fowler and FCC Mass Media Bureau Chief
McKinney). Brenner & Price, The 1984 Cable Act: Prologue and Precedents, 4 Cardozo
Arts & Ent. L.J. 19 (1985) (analyzing the Cable Act of 1984); Meyerson, The Cable
Communications Policy Act of 1984: A Balancing Act on the Coaxial Wires, 19 Ga. L.
Rev. 543 (1985) (same).
261. See 47 U.S.C. § 521(4) (Supp. III 1985); see also id. § 532(a), 532(e) (3), 532(g)
(other provisions discussing policy of encouraging diverse information sources); H.R.
Rep. No. 934, 98th Cong., 2nd Sess. 19 (1984), reprinted in 1984 U.S. Code Cong. &
Admin. News, 4655, 4656 (these provisions provide for widest possible diversity of infor-
mation services and sources) [hereinafter House Report]. The actual language of § 521(4)
refers to the widest possible diversity of "information sources" and this could have a
somewhat different meaning than diversity of programming. See Meyerson, supra note
260, at 590.
262. See 47 U.S.C. § 559 (Supp. III 1985). Because of this provision, the FCC deleted .;
its rule, 47 C.F.R. § 76.215 (1986), prohibiting obscene or indecent material on "origina-
tion cablecasting" channels. See Amendment of Commission's Rules to Implement Pro-
visions of the Cable Communications Policy Act of 1984, 58 Rad. Reg. 2d (P & F) 1, 37-
38 (1985) (deleting 47 C.F.R. § 76.215 (1986)). "Origination cablecasting" referred to
cable programming, other than broadcast signals, subject to the "exclusive control" of
the cable operator. 47 C.F.R. § 76.5(w) (1986).
263. See 1301
264. See 47U
reserve a ro]
preempts any in
§ 558 (discus
265. See Hous
cognate provisio
'A',.(1983), seems to
This provis
operators tc
judicially de
or the deter
determined
the Constiti
S. Rep. No. 67,
i_ None of the le
A ':'ditions can or sh,
programming by
'•that actually is c
$ 266: See Hous
C uz v. Ferre, 5
y.City, 555 F.
Sapp. 987 (D. U
inom,,,..corporates as t
d present dans
67rSee 47 U
X268:1See id §
ou`such channel:
supra note 261,
12269: 47 U.S.C,
€270- See 47 U.
editorial control I
y1f`y+5
arguedrfor
s sort of.'cen
owever ?ma -
of thejcabl
t
ues will:con
lear and con;
extent these
R
ression, they,
sure and en..
thg.261 €s
n 559, whicl'
ble of matter ;
stitution.'.zbz";:
ble analogue:
ug. 26, 1985,'a(
g The Playboy,:;
was sharply" 0`r
ee Final Repot;?'
stricter control.-
30-31, 573-82.;x;
's the first direct;.-
is a trade-offbys
See Goodale, Is ,
1, col. 1, at 32,'
osition and any:,
and certainty 6frr;,
acting, Dec. 10,
'a Bureau Chief"
ents, 4 Cardozo;
rson, The Cable;
fres, 19 Ga. &Z
32(e) (3), 532(6;
sources); H.W.. Code Cong. g`
iversity of infor z.
uage of § 521(4)x';
's could haves
rson, supra note
the FCC deleted'
rial on ` original!
Implement Prof,?,,
d (P & F) 1,
ing" referred to s
sive contra' of fa
F.
1987]
THE SIGNAL CABLE SENDS
509
of section 1464,263 it replaces "obscene, indecent or profane" with the
equally vague "obscene or otherwise unprotected." This same phrase is
repeated in section 544(d)(1), which allows a franchising authority and a
cable operator to specify in their agreement that obscene or otherwise
unprotected cable services "shall not be provided or shall be provided
subject to conditions."26a The legislative history of section 544(d) ex-
pressly adopts the Supreme Court's Miller obscenity criteria. It never-
theless indicates that franchising authorities can apply local community
standards, even though section 559 appears national in scope and much
cable programming is distributed nationally.265 The history also makes
clear that the phrase "otherwise unprotected" expression encompasses
"changing constitutional interpretations" that incorporate, for example,
indecency standards.266
Sections 559 and 554(d)(1), which apply to cable services generally,.
are complicated by a different provision governing commercial leased ac-
cess channels required under section 532.267 Because a cable operator is
forbidden to exercise any editorial control over such channels,268 he is
shielded from criminal or civil liability for programming carried on
them.269 A similar rule, in section 531, applies to access channels avail-
able for public, educational, and governmental ("PEG") uses.270 Section
263. See 130 Cong. Rec. H12,243 (daily ed. Oct. 11, 1984) (statement of Rep. Bliley).
264. See 47 U.S.C. § 544(d) (1) (Supp. III 1985). Such a provision might be necessary
to reserve a role for the franchising authority because the Act, otherwise, generally
preempts any inconsistent state or local provision. See id. §§ 544(a) -(f), 556(c). But see
id. § 558 (discussed infra note 277).
265. See House Report, supra note 261, at 4706. However, the legislative history of the
cognate provision of the Senate predecessor of the Act, S. 66, 98th Cong., 2d Sess. § 607
(1983), seems to adopt a different approach:
This provision of the bill is not intended to permit municipal officials or cable
operators to substitute their own concepts of obscene or unprotected speech for
judicially determined standards. Nor does it permit the imposition of sanctions
or the determination of a breach of the franchise in the absence of a judicial
determination that particular speech was obscene or otherwise unprotected by
the Constitution.
S. Rep. No. 67, 98th Cong., 1st Sess. 25 (1983).
None of the legislative history, however, addresses the intriguing question of what con-
ditions can or should be imposed on the presentation of obscene or otherwise unprotected
programming by § 544(d)(1); nor does it explain how such conditions apply to material
that actually is obscene.
266. See House Report, supra note 261, at 4706-07. The Report specifically refers to
Cruz v. Ferre, 571 F. Supp. 125 (S.D. Fla. 1983), Community Television of Utah, Inc. v.
Roy City, 555 F. Supp. 1164 (D. Utah 1982), and Home Box Office v. Wilkinson, 531 F.
Supp. 987 (D. Utah 1982). See House Report, supra note 261, at 4707. The Report also
incorporates as unprotected expression "fighting words" and speech presenting a "clear
and present danger" to public order. See id. at 4706.
267. See 47 U.S.C. § 532 (Supp. III 1985).
268. See id § 532(c)(2). A cable operator may consider the content of programming
on such channels only to establish a reasonable price for• its use. See id; House Report,
supra note 261, at 4688-89.
269. 47 U.S.C. § 558 (Supp. III 1985). See House Report, supra note 261, at 4732.
270. See 47 U.S.C. § 531(e) (Supp. III 1985). This section precludes a cable operator's
editorial control over such channels, and § 558 shields him from liability. Section 531(e),
510 FORDHAM LAW REVIEW
[Vol. 55
532(h), however, restricts use of a leased access channel by a cable ser-
vice that "in the judgment of the franchising authority is obscene, or is in
conflict with community standards in that it is lewd, lascivious, filthy, or
indecent or is otherwise unprotected by the Constitution.i27 There is no
indication of what this amorphous language means, why it expands on
the "obscene or otherwise unprotected" formulation of sections 559 and.
554(d)(1), or why sole discretion apparently is vested in the franchising
authority.272 Unless it is narrowly interpreted, this provision is of doubt-
ful validity, particularly because it seems to endorse prior restraint with
no procedure for prompt judicial review.273 Its practical effect, however,
is to create considerable difficulties and uncertainties for those wishing to
use the access channels, though not necessarily for the shielded cable
operator. Indeed, to the extent an operator can, he has a distinct advan-
tage in keeping questionable material on the access channels, because he
is not liable for programming on those channels.2'4
Finally, section 558 provides that the Act is not to be construed to
affect criminal or civil liability under federal, state or local laws regard-
ing "libel, slander, obscenity, incitement, invasions of privacy, false or
misleading advertising, or other similar laws."275 There is no indication
of the relationship between this section and the other obscenity/inde-
cency restrictions.
By this jumble of provisions Congress apparently sought two goals.
First, it attempted to prohibit both obscenity and indecency on cable to
the extent constitutionally permissible; that is, to theextent indecency is
held "otherwise unprotected" under changing constitutional interpreta-
tions.276 Second, it tried to avoid preemption and preserve a role for state
however, is subject to § 544(d), which allows a franchise agreement to exclude or condi-
tion the showing of obscene or otherwise unprotected material. But it does not indicate
how that agreement between the cable operator and franchising authority affects the third
party user of a PEG channel.
271. See 47 U.S.C. § 532(h) (Supp. III 1985).
272. The brief legislative history on this point uses only the "obscene or otherwise .. .
unprotected" language and describes § 532 (h) as expressly adopting the Supreme Court's
resort to local community standards. See House Report, supra note 261, at 4692. Be-
cause § 532(h) provides that the proscribed programming shall not be provided, or shall
be provided only subject to conditions, it raises the same questions as to the imposition of
conditions as § 544(d) (1) raises. See supra note 265.
273. See S. Rep. No. 67, 98th Cong., 1st Sess. at 25.
274. The Act, however, tries to prevent operators from defeating the purpose of leased
access channels by simply moving to these channels programming that is already on oper-
ator -controlled channels. See 47 U.S.C. § 532(c) (3) (Supp. III 1985); see also House
Report, supra note 261, at 4691-92; 130 Cong. Rec. at S14,289 (daily ed. Oct. 11, 1984)
(App. B).
275. See 47 U.S.C. § 558 (Supp. III 1985); see also House Report, supra note 261, at
4732
276. For example, in a colloquy inserted into the Congressional Record, Senator Gold-
water, who introduced the Senate predecessor of the Act, said that the "other similar
laws" language in 47 U.S.C. § 558 (Supp. III 1985) covers constitutionally sound inde-
cency laws. 130 Cong. Rec. S14,289 (daily ed. Oct. 11, 1984) (statement of Sen -
Goldwater).
1987]
and local coni
forcement.27
ever, Congress
far, to conside.
the new Act hi
':"that the statut
532, and that
, indecency.279
In addition
::?44(d)(2)(A)
the issue of inc
erators to sell
ice to restric
implementing
the
provision f
mission's steno
`cases related t
cause, as expla
ists, the same
With the u
,,:pounded by cls
4=tawl continuo
evade Pacifica'
tions are uncoi
eedom for be
III. 7
The assertec
277. Senator GI
Court's preemptio
and was designed
S14,289 (daily ed.
4y: 278. See Comm
?'Utah 1985), af'd
ti ai'd mer., 55 U.:
',279. See id. Ti
sited state or loo
e court distingi
felted instead on
iupp'r at 1104-06.
2280: Seee 47 U.S
�81:5Seeid Coy
0! child i to sucl
0282. Amandmei
.(p,.' 1
apply on
thus.'excl din con
.1Y_fail to impl<
[Vol. •5
cable ser-,,'
•e, or is
filthy, -4
ere is no
ds oat:
s 559 andchising
of doubt -41
nt with
, however,
wishing to
lded cable
nct advan-
because he
nstrued to
ws regard -
y, false or
indication
enity/inde-
•
two goals
on cable to
ndecency is
interpreta-
ole for state
-lode or condi-
not indicate
ects the third ''
r otherwise . ,
preme Court's
, at 4692. Be-
vided, or shall
e imposition of
urpose of leased =a
already on o s
Pu`:':
see also House``.
Oct. 11, 1984)`;;'
it)ra note 261, at•
'
1, Senator Gold -
le 'other similar
'ally sound inde-
atement of Sen.
t`
i
i
1987] THE SIGNAL CABLE SENDS
and local control, as well as for FCC regulations and other federal en-
forcement."'
n-
forcement27 In addition to spawning confusion and uncertainty, how-
ever, Congress may have frustrated its own purposes. The only court, so
far, to consider a state statute directed against cable indecency in light of
the new Act held that the Act preempted the statute.278 The court found
that the statute conflicted with the special provisions of sections 531 and
532, and that section 558 covers laws regulating obscenity, but not
indecency 279
In addition to these clumsy attempts, Congress adopted in section
544(d)(2)(A) a relatively straightforward approach that should govern
the issue of indecency on television 280 This provision requires cable op-
erators to sell or lease to their subscribers, upon request, a lock -box de-
vice to restrict children's access to certain cable programming281 In
implementing this program the FCC sensibly stated: "[W]e believe that
the provision for lockboxes largely disposes of issues involving the Com-
mission's standard for indecency and would also be a significant factor in
cases related to obscenity and similar offensive programming•+92s2 Be.
cause, as explained in the next section, similar broadcast technology ex-
ists, the same approach should be applied to broadcasting as well.
With the unabating trends in the cable indecency area now com-
pounded by chaotic federal legislation, however, courts will almost cer-
tainly continue to assert differences between broadcasting and cable to
evade Pacifica's strictures. We therefore now consider why these distinc-
tions are unconvincing and even damaging to expanded first amendment
freedom for both cable and broadcasting.
III. THE SIMILARITY OF BROADCASTING AND CABLE
The asserted distinctions between cable and broadcasting may have
277. Senator Goldwater also made it clear that § 558 directly addressed the Supreme
Court's preemption decision in Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984),
and was designed to maintain state and local authority in this area. 130 Cong. Rec.
S14,289 (daily ed. Oct. 11, 1984) (statement of Sen. Goldwater).
278. See Community Television, Inc. v. Wilkinson, 611 F. Supp. 1099, 1102-06 (D.
Utah 1985), aff'd per curiam sub nom. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986),
a f'd mem., 55 U.S.L.W. 3643 (U.S. Mar. 23, 1987) (No. 86-1125).
279. See id. The court, however, found simply that §§ 531 and 532 authorize more
limited state or local regulation of access channels than Utah's broad statutory approach.
The court distinguished the inserted Goldwater colloquy, see supra notes 276-77, and
relied instead on the `official" legislative history. See Community Television, 611 F.
Supp. at 1104-06.
280. "See 47 U.S.C. § 544(d) (2) (A) (Supp. III 1985).
281. See id Congress specifically cited such devices as one means of limiting exposure
of' children to such material. See House Report, supra note 261, at 4707.
282. Amendment to Rules Under the 1984 Cable Communications Act, 58 Rad. Reg.
2d (P & F) 1, 36 (1985) (citation omitted). The Commission's lock -box requirements,
however, apply only to channels over which a cable operator has editorial control. By
thus excluding commercial access, PEG, and must -carry channels, the requirements ar-
guably fail to implement fully congressional policy. See Meyerson, supra note 260, at 603
n.347.
511
some superficial appeal, but they are not constitutionally significant.
This is true at three levels of analysis: a) the asserted factual differences
between the media; b) the purported uniqueness of broadcasting thought
to follow from these factors; and c) the societal justifications for control-
ling television program content.
A. The Factual Elements
1987]
'It simply st2
overnment
Applying tilt
„cable prograi
'Moreover,
produced by
mission
t ibuted • to F.
most cable 1
same "public
;`�"�r in di
gramm g
local govern
rwould still b
The factual distinctions between broadcasting and cable fall generally
into three non-exclusive categories: i) the physical characteristics of each
medium; ii) the choices each medium affords the viewer; and iii) the na-
ture and degree of control a viewer has over each medium.283 None of
the asserted distinctions, however, is sufficient to justify different first
amendment treatment.
1. Physical Characteristics
Both cable and broadcast programming are distributed by the same
physical phenomenon, electromagnetic radiation. Cable signals are
transmitted over wires, while broadcasts are transmitted through space.
But neither method is more in the public domain than the other. Indeed,
the notion of public ownership of the broadcast airwaves is misguided.284
283. In the cable indecency cases, courts also have noted that broadcast television has
more advertising. These courts have not, however, explained how this is significant, even
if accurate. See supra text accompanying note 242. Presumably, such courts reason that
advertisers exert some control over offensive programming in order not to offend poten-
tial customers. This rationale is dubious, at best. Even sex -oriented programming like
Midnite Blues, on Manhattan Cable's public access channel, attracts advertisers such as
escort services, sex clubs, and videocassette stores that seek a particular audience. More-
over, although pay cable lacks the usual television advertising, the programming is the
product sold. Consequently, the programming itself is subject to competitive and com-
mercial pressures similar to those exerted on sponsored programming. Finally, even if
there were more advertising on broadcast television, the courts' reasoning would support
greater freedom from governmental content control for broadcasting, not cable.
284. Although property rights in the use of a portion of the electromagnetic spectrum
can and should be protected, the concept of spectrum ownership is, strictly speaking,
meaningless. Electromagnetism is simply one of the four fundamental forces of nature,
the others being gravity and the "strong" and "weak" nuclear forces. The electromag-
netic spectrum, therefore, cannot be owned, publicly or privately, any more than gravity
can be owned. No one, for example, would be likely to justify a government tax on
automobiles for the privilege of keeping a car "on" the road as a gravity use tax based on
the government's ownership of gravity. This analogy is increasingly compelling as mod-
ern physics moves to unify the four fundamental forces under one theory. See, e.g.,
Quigg, Elementary Particles and Forces, Scientific American, April 1985, at 84.
Similarly, property interests in another form of electromagnetic radiation, sunlight in-
cident on one's real property, are limited to the right to use the light without interference,
but are not based on ownership of the sunlight itself. See, e.g., Prah v. Moretti, 108 Wis.
2d 223, 233-34, 321 N.W.2d 182, 188 (1982); see also Robinson, The FCC and the First
Amendment Observations on 40 Years of Radio and Television Regulation, 52 Minn. L.
Rev. 67, 152 (1967) (public ownership of the broadcast spectrum is logically meaning-
less).
The electromagnetic spectrum, therefore, is not a "natural resource" subject to owner-
ship. Indeed, one could say that it does not exist independently of specific transmitters
The case
stronger witl
The standard
stable syste:
or the servic
over, a cable
Iii particular
ees to recei'
'channels, wh
Wally, the su
;cable service
p"roviding tht
the home rat
As long as
with on/off b
ces of choi
both cable
,Sand receivers.
;;Communication.
;stitute Policy A
u''285. Such a c
istttutionally bar
Same.` televisions
machine playing
tional dimensiot
286: See C. B
natioiial prograr
allegations of ins
er; may origin
874 Indeed,
79:and acro
4t`ord.) (Coi
note 232::
.�4
n t;r
[VoL,
eryt.
y significan
al difference
Sting thought
s for contrail
r•=€`for
fall generally'
'sties of eacli'
d iii) the na=`"i
283 None'of
different first'
aFai
by the same 't2
signals are.
rough space.: ;
ether. Indeed,''
misguided.284
ast television has T:(f
significant, even
)urts reason that .�?
to offend poten-:..`;'F
rogramming like
.vertisers such as t'
audience. More- y;
gramming is the
oetitive and com-
Finally, even if
Ig would support
of cable.
agnetic spectrum
strictly speaking,
forces of nature, : r
The electromag-..;
lore than gravity a 3
vernment tax on
use tax based on
npelling as mod -';;.At.
heory. See, e.g.,
15,at84.
.tion, sunlight in -
lout interference,
faretti, 108
CC and the First;;'}
!ion, 52 Minn. .. 4
ogically meaning -'
subject to owner-
:cific transmitters
it
i•+� J
? c
"5 • 1
,":,1987]
9 THE SIGNAL CABLE SENDS -513
t simply states the conclusion that broadcasting should be subject to
vernment regulation, which needs,independent justification to be valid.
Applying the same forced rationale, the government could also regulate
cable programming because cable wires must use public rights-of-way.285
Moreover, the bulk of programming distributed by cable operators is
produced,by others and transmitted to the operator's headend by satellite
.transmission or land-based microwave relay stations 286 It is then redis-
tributed to subscribers via cable. The entire distribution network for
most cable programming, therefore, heavily depends on the use. of the
same "public" airwaves as broadcasting. This global view of cable pro-
gramming distribution might shift the focus for regulation from state or
local government to the FCC.287 Nevertheless, such programming
would still be as vulnerable to regulation as broadcasting.
2. -Nature and Degree of Viewer Choice
The case for distinguishing cable from broadcasting is only slightly
stronger with regard to the choices that viewers of each medium have.
The standard argument is that a cable viewer must choose to subscribe to
a cable system, undergo the initial equipment installation, pay originally
for the service and continue paying a periodic subscription fee. More-
over, a cable subscriber often may choose additional specialty channels.
In particular, the subscriber must specifically order and pay additional
fees to receive selected premium programming such as movie or adult
channels, which often are at the heart of the indecency controversy. Fi-
nally, the subscription to any particular channel, or indeed the entire
cable service, can be cancelled at any time. The argument is that, by
providing these choices, cable becomes more like a "guest" invited into
the home rather than the "intruder" broadcasting is said to be.
As long as individuals have free will and television sets are equipped
with on/off buttons and channel selectors, however, these asserted differ-
ences of choice are ephemeral. The only significant choice with respect
to both cable and broadcast programming is whether to watch. This
and receivers. For a more technical discussion. see Mueller, Property Rights in Radio
Communication: The Key to the Reform (y' Telecommunications Regulation, 11 Cato In-
stitute Policy Analysis , 6-9 (1982).
285. Such a conclusion could lead to the anomalous result that material could be con-
stitutionally banned from a local cable system but nonetheless could be viewed on the
same televisions with videocassette recorders. The length of the cable between the
machine playing the tape and the machine displaying the image would be of constitu-
tional dimension. Cf supra note 248.
286. See C. Ferris, F. Lloyd, & J. Casey supra note 168, ¶ 25.02, at 25-3. In particular,
national programming on the premium movie and adult channels, the common targets of
allegations of indecency, is distributed this way. Material on local access channels, how-
ever, may originate at the cable headend.
287. Indeed, state or local regulation may be federally preempted. See supra notes 6-7,
277-79 and accompanying text. But see Video 44, 103 F.C.C.2d 1204, 1210 (1986) (mem.
op. & ord.) (Commission will now defer obscenity issues to local authorities). Cf supra
note 232.
Kfr
'{
i.�
°r•
a.i
:r
31
•tt
filf
Yrt
514 FORDHAM LAW REVIEW [Vol. 55
choice is equally available in each medium. The initial choice is whether
to own a television receiver, whether one connects it to a cable, to a dish
antenna for direct receipt of satellite transmissions, or to a standard roof-
top antenna for traditional broadcast reception is of little consequence.
In each case, one must pay for the necessary equipment; differences in
the economics of this payment do not produce different viewing choices.
In each case, failure to -pay either an initial amount or a periodic pay-
ment, as a cable subscription payment or an installment payment for tele-
vision equipment, has the same result of "choosing" not to watch. After
making the payments, however, turning on the set is equally an invitation
into the home to broadcasting and to cable. Thus, perceived differences
in the effort or deliberateness of choosing to watch cable over broadcast-
ing are largely vacuous and irrelevant to the indecency controversy be-
cause the deliberateness and effort in choosing not to watch either are the
same.
Finally, although a cable subscriber has more channels and therefore
more choices, this numerical superiority by itself is irrelevant to deciding
whether any of those channels should be subject to content control. In
fact, if one believes that, in this sense, broadcasting is a scarcer medium
than cable, broadcasting should be entitled to more, not less, protection
from indecency regulation than cable to ensure diversity of
programming.2ss
3. Nature and Degree of Viewer Control
The differences between broadcasting and cable seem most apparent
with regard to viewer control. Many cable channels are devoted to spe-
cial formats that appeal to specific groups of viewers. This "narrowcast-
ing" feature largely allows a subscriber to exclude certain programming
formats simply by not subscribing to the corresponding channels or to a
tier of services including those channels.289 For several reasons, how-
ever, the exclusion of indecent or otherwise objectionable cable program-
ming is not so simple.
First, although cable operators use converters and scramblers to pre-
vent normal reception of premium channels by cable subscribers who
have not ordered and paid for them, these devices may not adequately
screen out offensive material.290 Such problems presumably could be
288. See supra note 197.
289. To the extent, however, that a cable system offers some basic or premium chan-
nels only in fixed tiers, a subscriber is precluded from perfect, channel -by -channel
discrimination.
290. On many systems, for example, only the video portion of the signal is scrambled.
Therefore, a subscriber to the basic tier of such a system could tune in to a televised
performance of the Carlin monologue, see supra note 170 and accompanying text, on a
pay channel with Carlin's physical features distorted but his voice clear and discernible.
Movie dialogue with similar language also would be available. Moreover, even scrambled
video of adult programming with discernible nude bodies and depictions of sexual. activitY �<<
may be too offensive for some.
.
is
=,.1987]
solved by refine
the advantages c
confined to a fe
entirely only by :
channels291 may
r^'tier of service.29s
;;.premium chain(
will also find a n
�4 ne1.293 Indeed, al
programming al;
Viewer guides;
as a way to avoir
' These often prov
the MPAA rating
- ` 291. Most cable sy
free of the operator's
=;. 292. See Public Ac
20, 1982, at 1, col. 4.
§ 6 (Magazine) at 12!
is finding an outlet or
Y, Right Wing Views, N
,+ The 1984 Cable A
channels be provided
could also argue that
597-98 & n.322; see c
Reg. 2d (P & F) 514,
purposes of rate re 1
includes, inter alia, an
v , ment to Part 76 of Ru
1986).
Moreover, in the p;
;r, f ming. See Cable TV
:rules); Obscene or Inc
operator must not onl•
„,..Operator
enforce them). Manha
n,,right not to transmit
; liability. See C. Ferri;
from Manhattan Cab]
,,supra note 16, at 198-9
for Programming it c
.Cable's censorship). C
aver access ro
;,,....:. p gramm
;.� whatever moderating i
r • Ioyd, & T. Casey, sui
293. For example, f
Batile Intensifying Ove;
ost: eff
,k,�.,, , orfs to regulate
movies with `R” or ei
ome Box Office, Inc.
The,situation may well
television where a Parti
mately. See Ross,Pay
-Pt
A Push
;'3
tial choice is wh
't to a cable, tdaw
or to a standard
sof little consequen
ipment; differences
Trent viewing..;" �.
chgice,
t or a periodic spa •
ent payment for
' not to watch.-
equally an invitaq
perceived differences
able over broad cast- t.
ency controversy
watch either are
e
annels and therefore
rrelevant to deciding
content control. -
is a scarcer medium
, not less, protection
isure diversity ' of
:4isa
)ntrol
;eem most apparent.;.::'
are devoted to spe=. F'
. This "narrowcast=s,
5rtain programming
ing channels or to
veral reasons, how-
able cable program1
scramblers to pre=;,
de subscribers who•
re:
nay not adequately.;
could b0"','.
>asic or premium chant;`,
ct, channel-by-channe1z;
the signal is scrambled.
. tune in to a televised;`.
companying text, on 'a
e clear and discernible
reover, even scrambled'•:
tions of sexual activity
c.
-
THE SIGNAL CABLE SENDS
515
solved by refined technology, but there are more fundamental limits to
the advantages of narrowcasting. Arguably indecent programming is not
confined to a few identifiable premium channels and can be eliminated
entirely only by removing the television set. The public and leased access
.channels29t, may also be a fertile source of indecency, even on the basic
tier of service.292 More generally, even those who willingly subscribe to a
premium channel to enjoy major, family-oriented movies in their homes
will also find a number of adult or "R" -rated movies on the same chan-
ne1.293 Indeed, any channel that shows current movies or serious, mature
programming also may include "indecent" material.
Viewer guides, available for most cable channels, are frequently cited
as a way to avoid unpleasant surprise from unwanted program content.
These often provide a short description of scheduled programming, give
the MPAA rating for movies, and indicate potentially offensive language,
291. Most cable systems are required to provide such public and leased access channels
free of the operator's editorial control. See supra notes 267-70 and accompanying text.
292. See Public Access TV in New York Tends Toward Sex, Sadism, Wall St. J., Dec.
20, 1982, at 1, col. 4.; Schwartz, The TV Pornography Boom, N.Y. Times, Sept. 13, 1981,
§ 6 (Magazine) at 129-30. Real "indecency" in the form of racism and anti-semitism also
is finding an outlet on cable access channels. See Extremist Finds Cable TY Is Forum for
Right Wing Views, N.Y. Times, Oct. 7, 1986, at A23, col. 1.
The 1984 Cable Act does not specifically require that either PEG or leased access
channels be provided on the basic tier, but many local franchise agreements do. One
could also argue that this is implicit in the Act. See Meyerson, supra note 260, at 589,
597-98 & n.322; see also Amendment to Rules Implementing 1984 Cable Act, 60 Rad.
Reg. 2d (P & F) 514, 522-23 (1986) (maintaining definition of "basic cable service" for
purposes of rate regulation as the tier of service regularly provided to all subscribers that
includes, inter alia, any PEG channels required by local franchising authorities); Amend-
ment to Part 76 of Rules, [Current Service] Rad. Reg. (P & F) ¶ 85:5 at 85:607 (June 18,
1986).
Moreover, in the past some cable operators previewed and censored access program-
ming. See Cable TV Access Channel Rules, 83 F.C.C.2d 147 (1980) (amendments to
rules); Obscene or Indecent Matter on Access Channels, 59 F.C.C.2d 984 (1976) (cable
operator must not only make rules against obscene and indecent programming, but must
enforce them). Manhattan Cable, for example, required such a preview and reserved the
right not to transmit the program unless edited, ostensibly to protect itself from legal
liability. See C. Ferris, F. Lloyd, & T. Casey, supra note 168, at App. C-455 (excerpts
from Manhattan Cable TV Community Programming Handbook). But see Hofbauer,
supra note 16, at 198-99 (noting that New York law protects cable operator from liability
for programming it does not originate and suggesting other reasons for Manhattan
Cable's censorship). Cable operators now are precluded from exercising editorial control
over access programming and correspondingly are relieved from liability for it. Thus,
whatever moderating influence such a previewing process had is lost. See C. Ferris, F.
Lloyd, & T. Casey, supra note 168, ¶ 15.07[1].
293. For example, forty per cent of the movies on HBO are "R" -rated. See Smith,
Battle Intensi�ing Over Explicit Sex on Cable TV; N.Y. Times, Oct. 3, 1983, at 1, col. 2.
Most efforts to regulate cable indecency unavoidably affect numerous critically acclaimed
movies with "R" or even softer ratings. See supra note 239; see also Brief for Appellee
Home Box Office, Inc. at 9, Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985) (No. 83-5588).
The situation may well be different with pay -per -'view services on cable or subscription
television where a particular program is ordered from a program guide and paid for sepa-
rately. See Ross, Pay -Per -View on The Verge of Prominence, Cablevision, Nov. 4, 1985, at
24; Stevenson, A Push for Pay -Per -View TV, N.Y. Times, June 11, 1985, at D1, col. 3.
516 FORDHAM LAW REVIEW
[Vol. 55
nudity, or violence.294 Program guides, however, are also available for
broadcast television. Moreover, they are not inherently more useful or
effective for cable subscribers than for broadcast viewers. Similarly,
equivalent warnings. can be given to both cable and broadcast viewers,
both before and. during295 potentially offensive programs. •
The ultimate control for the cable subscriber is often said to be the
cable lock -box or parental discretion unit ("PDU"). This allows parents.
to lock out, with a key or private code, particular channels likely to con-
tain material they do not want their children to see. The device, required
by the 1984 Cable Act,296 allows parents, even when they are absent, to
supervise their children. The PDU, however, is no panacea. Its effec-
tiveness depends on the quality and availability of advance information
from program guides. Moreover, even when the devices are advertised to
subscribers and readily available at nominal cost, very few subscribers
choose to use them. Apparently the need or desire for such control is
greatly exaggerated.297
To the extent a PDU is useful, however, it can benefit equally cable
and broadcasting. Some major television manufacturers already build
into certain models timing circuitry by which a parent can block out
designated channels, including those for playback of recorded material,
for up to 12 hours.298 More refined control can be provided by a device
that responds to a special electronic signal broadcast, for example, with
an "R" or "X" -rated movie. This signal could then turn the screen and
294. Many cable operators offer subscribers a programming guide, often without
charge. See Guides Gaining Ground, But Questions Remain, Cablevision, Jan. 6, 1986, at
35. National publications such as TV Guide provide the same sort of information on a
broader scale. These sources, moreover, merely supplement the cable and broadcasting
guides readily available in daily and Sunday newspapers. Some guides, however, may not
adequately cover public and leased access programming.
295. In 1975, for example, the FCC noted that, in France, broadcasters placed a small
white dot in a corner of the screen during a program to continually warn viewers that it
might not be suitable for children. See Broadcast of Violent, Indecent, and Obscene Ma-
terial, 51 F.C.C.2d 418, 421 (1975). One commentator has suggested that requiring such
a warning would be constitutional as a sort of truth in labeling law. See Nadel, Cable -
speech for Whom?, 4 Cardozo Arts & Ent. L.J. 51, 57 (1985).
296. See supra notes 280-82 and accompanying text.
297. In Community Television, Inc., v. Wilkinson, 611 F. Supp. 1099, 1114 (D. Utah
1985), aff'd sub note. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff'd mem., 55
U.S.L.W. 3643 (U.S. Mar. 23, 1987) (No. 86-1125), the Utah Attorney General com-
plained that, although cable subscribers were advised of the availability of lock -boxes
either free or for less than $20, less than one per cent of plaintiffs' subscribers chose to
obtain them. See Jones, 800 F.2d at 1002-03; Defendants' Amended •Memorandum on
Summary Judgment at 21 nn.8 & 9, Jones` v. Wilkinson, 800 F.2d 989 (10th Cir. 1986);
Plaintiffs' Joint Memorandum on Summary Judgment, at 10, Jones v. Wilkinson, 800
F.2d 989 (10th Cir. 1986); see also Smith, Battle Intensifying Over Explicit Sex on Cable
TV, N.Y. Times, Oct. 3, 1983, at 1, col. 2, at C22, col. 5 (in one California community,
only 300 families out of 96,000 subscribers, of whom 10,000 took a special adult subscrip-
tion service, obtained a free lock -box).
298. See, e.g., General Electric, Inc., (brochure describing Command Perform-
ance(TM) Series television sets) Pub. No. 76-4036, (available from G.E.'s Video Products
Business Division, Portsmouth, VA 23705).
1987]
audio blank, scrar
public service or t
easily available, at
'technology air
es'eir, have notbe
tant to make:
::"P9. The triggering
of a television broads,
bblack bar when a te1el
;as, teletext and close -c
signals. See Data Trar
t2d (P & F) 832 (1985)
Jing the appropriate sif
`mals to indicate wher
iiadustry representativ
'tiTelephone interviews
`Magnavox CATV (Oc
�ntcal Manager, Broadt
;R(notes on file with aut
;.;;(Oct. 14, 1985) (notes
Special Projects, Static
:author); see also L.A.
.iTelevision relied on st
tlbroadcast of signals all
sion. See Children's A
11985 (petition for ru
,;;The industry repres
;depend on whether the
into the television rece
died dollars, all the est
;,Controlling Unwanted
:* (estimating the cost of
`" ,produced in "large" qt
iproduct. Nevertheless
television sets just as a
J"An alternative syster
,patented. It would emr
::dally edit what could 1
'subscribing viewer. Sec
:•,300. See Transmissi(
& F) 1309 (1983) (
aJ.'d in part, rev'd in pc
F 2d.,501 (D.C. Cir. 19
(N0;.86-1370); cf. TV
advent of interactive
d! en's television progn
301:, In a footnote i
eehnrca/ Brief.• Do-It-
awatiming device to
cast indecency. l:
_.(1978). The Court
radio was the
gable. and broadcast to
�o may be pervasi;'
ensive and accessi
ra11 St. J., Mar. 5,
lso available "Erie
r more useful'o
ers. Similarly;
adcast viewersq;
said to be,'the
s allows paren_.
is likely to
device, required
y are absent,16
acea. Its effec-
ce
information_
re advertised to >,
few subscribers?,
such control is f
•
fit equally cable xs'
s already build y
can block out 1
orded material,: '
ded by a device:=
r example, with'
the screen and;
ide, often without.
ion, Jan. 6, 1986, at:
of information on a
le and broadcasting
however, may not
ti
lsters placed a small
warn viewers that it'd;,
'.t, and Obscene Ma=74i
that requiring such i.,
See Nadel, Cable=' r+
099, 1114 (D. Utah',
p86), af'd mem., 55 "
irney General com;,;
bility of lock -boxes''
ubscribers chose;to
Memorandum'oi
9 (10th Cir. 1986);
v. Wilkinson, 800
elicit Sex on Cdbk
omia community;::'
"al adult subscrip=t
ommand Perform=
.'s Video Products'`
ft 4
1987]
THE SIGNAL CABLE SENDS
517 .
audio blank, scramble it, or switch to_a "barker" channel, such as news,
public service or the like. Such broadcast technology is entirely feasible,
easily available, and relatively inexpensive.299 Indeed, virtually identical
technology already is used in teletext services.300 These devices, how-
ever, have not become widely available301 because manufacturers are
hesitant to make PDU's that respond to broadcast signals that are not
299. The triggering signal would be transmitted on the vertical blanking interval (VBI)
of a television broadcast signal. This is the space on a television screen appearing as a
black bar when a television picture rolls. It is used already to transmit information such
as teletext and close -captioned service, but still can accomodate the additional necessary
signals. See Data Transmission Services on the Vertical Blanking Interval, 57 Rad. Reg.
2d (P & F) 832 (1985) (amendment to rules). Networks would not have a problem send-
ing the appropriate signals to their local .affiliates because they already send similar sig-
nals to indicate when local programming should be inserted. Several knowledgeable
industry representatives have confirmed the ease of implementing such a process. See
Telephone interviews with: Ric Rowland, Product Manager, Subscriber Products of
Magnavox CATV (Oct. 23, 1985) (notes on file with author); Jim Farmer, Division Tech-
nical Manager, Broadband Communications Division of Scientific-Atlanta (Oct. 25, 1985)
(notes on file with author); Torn Mock, Staff Engineer, Electronic Industry Association
(Oct. 14, 1985) (notes on file with author); Bob Woodward, Engineer and Coordinator of
Special Projects, Station KAET-TV, Tempe, Arizona (Oct. 17, 1985) (notes on file with
author); see also L.A. Times, June 21, 1983, Part VI, at 8, col. 1. Action for Children's
Television relied on such technology in a recent petition asking the FCC to require the
broadcast of signals allowing home devices to block out commercials on children's televi-
sion. See Children's Advertising Detector Signal, 57 Rad. Reg. 2d (P & F) 935, 937-38
(1985) (petition for rule-making denied as inadvisable on policy grounds).
The industry representatives contacted indicated that the cost of such a PDU would
depend on whether the device were an out -of -set unit needing its own tuner or one built
into the television receiver's circuitry. Although a separate unit might cost a few hun-
dred dollars, all the estimates for the in -set unit were between $20 and $25. See W. Baer,
Controlling Unwanted Communications to the Home, Rand Paper P-6107, at 18 (1978)
(estimating the cost of built-in device responsive to transmitted signals at less than $25 if
produced in "large" quantities). The ultimate price would depend on the demand for the
product. Nevertheless, the cost could be subsidized, for example, by purchasers of all
television sets just as all subscribers of a cable system subsidize "free" lock -boxes.
An alternative system, the practicality and cost of which are unkown, has recently been
patented. It would employ a central monitoring and command station that would contin-
ually edit what could be watched on a television according to prior instructions from a
subscribing viewer. See Broadcasting, June 24, 1985, at 64.
300. See Transmission of Teletext by TV Stations, Report and Order, 53 Rad. Reg. 2d
(P & F) 1309 (1983) (amendment to rules), reconsid denied, 101 F.C.C.2d 827 (1985),
aff'd in part, rev'd in part, Telecommunications Research and Action Center v. FCC, 801
F.2d 501 (D.C. Cir. 1986), petition for cert filed, 55 U.S.L.W. 3608 (U.S. Feb. 20, 1987)
(No. 86-1370); cf. TV Toys: Debut and Debate, N.Y. Times, Feb. 9, 1987, at D3 col. 1
(advent of interactive video toys that will respond to signals broadcast along with chil-
dren's television programs).
301. In a footnote in its Supreme Court brief, Pacifica cited an announcement, see
Technical Brief Do -It -Yourself, Broadcasting, Feb. 27, 1978, at 83, of a prototype televi-
sion timing device to counter the argument of unsupervised exposure of children to
broadcast indecency. Brief for Appellee at 48-49 n.40, FCC v. Pacifica Found., 438 U.S.
726 (1978). The Court ignored the point, perhaps because the device was not fully devel-
oped or radio was the medium in issue. Indeed, one irony of the comparison between
cable and broadcast television is that radio may be distinguished from both of them.
Radio may be pervasive because its blare often is unavoidable in public places. It is
inexpensive and accessible to unsupervised children in a way that television is not. But
see Wall St. J., Mar. 5, 1986, at 33 col. 4, describing the advent of mini portable televi-
,
1
T.
1i
IF
t)
ii
{
et -
(ft
iIi
iL
518 FORDHAM LAW REVIEW [Vol. 55
yet being transmitted.3O2 The networks, in turn, do not have an incentive
to promote a system that, they fear, might curtail some of their audi-
ence.3o3 Moreover, in the current regulated environment, broadcast pro-
gramming generally has been too bland and noncontroversial to generate
much interest in PDU's.
The feasibility of broadcasting PDU's, functionally equivalent to cable
lock -boxes, thus destroys the Pacifica Court's already misplaced reliance
on Rowan.304 These devices provide an individually discriminating
mechanism for excluding unwanted broadcast communications from the
home. They would be no more burdensome than the "short, though reg-
ular, journey from mailbox to trash can" that the Court accepted as an
alternative to government censorship in the context of objectionable
mugs 3os Moreover, the simple and practical development of the
broadcasting PDU is clearly a less restrictive means of regulation than
the Pacifica approach.306 Consequently, broader, regulation is not justi-
fied simply because the alternative requires new but available methods.307
Rath30, the availability of equivalent technology for broadcasting and
cable should preclude different first amendment treatment for the two
media based, even in part, on the fallacious assumption of greater viewer
control over cable.
sions. On the other hand, radio is limited to language, which may be of less concern with
regard to indecency than graphic visual images.
302. See L.A. Times, June 21, 1983, Part VI, at 8, col. 1.
303. Such opposition might be short-sighted, however, since the availability of PDU's
might easily enable the networks to offer broader programming in competition with
cable.
304. See supra notes 222-25 and accompanying text.
305. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 72 (1983) (quoting Lamont v.
Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (S.D.N.Y. 1967), afJ'd, 800 F.2d
989, cert. denied, 391 U.S. 915 (1968).
306. See Carlin Communications, Inc. v. FCC, 749 F.2d 113, 121 (2d Cir. 1984); see
also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 74 (1981); Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980).
307. Indeed, the Second Circuit recently rejected the FCC's efforts to regulate dial -a -
porn through time -channeling or access code provisions because, with such content based
regulation, the Commission had failed adequately to consider less restrictive mrant that
are technically and economically feasible, such as new ways of selectively screening or
blocking such calls especially at customer premises. See .Carlin Communications, Inc. v.
FCC, 787 F.2d 846, 855-57 (2d Cir. 1986); Carlin Communications, Inc. v. FCC, 749
F.2d 113, 122-23 (2d Cir. 1984). In addition, the FCC has just made the "A/B" switch, ;,'•:
allowing television viewers to alternate between receiving cable and broadcast signals, a
centerpiece of its new must -carry rules. In doing so, the Commission acknowledged that
its previous concerns about the inconvenience of such switches and their non-use by con-
sumers were no longer valid in the search for regulatory approaches that are minimally
intrusive on first amendment freedoms. See Must Carry Rules, 61 Rad. Reg. 2d (P & F) `
792, 841 (1986), modified on reconsid., 62 Rad. Reg. 2d (P & F) — (1987).
308. Use of the cable lock -box, which is totally controlled by the viewer, presents noJ
first amendment difficulties. Likewise, the simple timing PDU for broadcasting also.",:;:-.
should be uncontroversial With the signal -responsive PDU, however, it would be
cult to determine who should decide which programming should carry which triggering';,
signal and how that decision should be made. Within technical limitations, signals and
the programmed responses might differ with the degree of explicit sexual material or;
3
t.
•
X1987]
In fact, consider
:1'i n and cable high
"1;:v.::.-,:assue is the suj
n viewing hal
'whether they exert
;simply asserting aI
t
'e,'B The "Unique
• -' '4The asserted dist
Y'when measured by
+'=ring pervasiveness
:,basis of Pacifica.
3�Tr
ft; Whatever the Co
cable is similarly
pe
siveness cannot mel
all around us. 5
omagnetic radiatio
content control.31
and' cable transmissi
kith -6 dispute over '
}should decide the is;
IThe Court probab
leash in the United S
excessively violent progr
° dressed.
'.:Any such system wouk
rating system. These woul
however, that, in supl
ANL Reg. 2d (P & F) 9:
memorandum by Professo
obstacle to a signal respo:
°
ing with general pro! 5 iildren
ms.,., . that need not be
t "might be as manal
FCC v. Pacifica F
lavation of what it me
310.; The notion of a m:
ttomagnetic radiation prop
Y
'„experiment. It was def
' e Special theory of relati,
French ed. 1979
etherz with "electromagn
,259+'§:127(a), 96 Stat.
o ta'hl 82 see Communit:
(invoking
344Thereare more the
hat
8498% of all househo,
c
{y1
5
of have an inceahv
some of theiraui';
lent, broadcas'p,'
`oversial to �` "'
equivalent 'to'c bl
misplaced relian
ally discriniina":
unications from file
"shortthou - r"
gh;reg-
lurt accepted as: ai'
4 of objectionalile'
levelopment of alie
of regulation
� thari
,elation is not juste
ailable methods.i07
broadcasting and';
atment for the two:
n of greater viewer
1.7
e
be of less concern wi
availability of PMI's
in competition wit i
3) (quoting Lamont v
1967), affd, 800 F.2d'
21 (2d Cir. 1984);
Tillage of Schaumburg
arts to regulate dial;ii.
th such content basedr
restrictive means tiiat�4 -
lectively screening ors.'
nmunications, Inc;vi�€.
ns, Inc. v. FCC, '749
ie the "A/B" switc `,•;
1 broadcast signals;:
520 FORDHAM LAW REVIEW
[Vol. 55
vast majority of this country's population is exposed to a significant
amount of television in their daily lives.313 Cable television, however,
while not yet as universal as its broadcast counterpart,reaches an in-
creasingly substantial portion of the American public.314 Estimates for
1990 are that 54% of television households will have at least basic cable
and 35% will have pay cable as well. Further, about 87% of all televi-
sion households will be passed by cable and, therefore, have it avail-
able.315 The question is not whether cable is 'as universal as broadcasting,
but whether access to cable is so limited that it can be considered a
nonpervasive medium. The available current and projected statistics
clearly indicate that, on any sensible scale of pervasiveness, the answer is
n0.316 Thus, cable and broadcasting cannot be distinguished because one
is quantitatively pervasive and the other is not.
The Court apparently also emphasized that broadcasting is available in
the home.31 This, of course, is equally true of cable and most other
media of mass communication, including movies on videocassettes. But
classifying broadcasting as an "invader" into the home and cable as only
an "invited guest" is inappropriate.als Moreover, because both broad-
casting and cable come into the home where one's privacy interest is
greatest, both media should be free from government intervention. A
similar privacy concern also supports individual freedom of choice,
either to refrain from watching objectionable programming or to allow
into one's home, under appropriate supervision, programs one desires,
even though others find them offensive. Because such freedom of choice
can be exercised equally in either medium, pervasiveness neither distin-
guishes cable from broadcasting nor supports government censorship.
in the home. Broadcasting Publications, Inc., Broadcasting/Cablecasting Yearbook A-2
(1986).
313. The average daily viewing in television households, during the 1983-84 season,
was over seven hours. A.C. Nielsen & Co., supra note 206, at 6. Even the lowest viewing
household group spends more time watching television each week — over 40 hours —
than most people spend working. See id at 7.
314. Over 7,300 cable systems nationwide serve some 19,000 communities. Broadcast-
ing Publications, Inc., supra note 312, at D-3. Another one -thousand franchises have
been approved but not yet built. Id. In 1985 cable had penetrated over 46% (39.9 mil-
lion) of all television households in this country, a yearly increase of 5.7%, Broadcasting,
Dec. 16, 1985, at 144 (citing statistics from A.C. Nielsen & Co.). As of 1987, almost 75%
of television households were passed by cable. Cablevision, Jan. 5, 1987, at 62.
315. Id Some analysts predict 60% cable penetration (58 million subscribers) by
1990. See 1985 Fairness Doctrine Report, supra note 4, 102 F.C.C.2d 143, 209 n.242
(1985); Arthur D. Little, Inc., Prosperity for Cable TV: Outlook 1985-1990 at 11 (1985)
(Report to National Cable Television Association projecting cable industry growth).
316. Cable and broadcasting cannot be distinguished on the basis that broadcast televi-
sion is thought to be free while cable might be considered expensive and, therefore, of
limited availability. See Winer, supra note 3, at 252-54.
317. See FCC v. Pacifica Found., 438 U.S. 726, 748 (1978). See supra notes 217-25
and accompanying text.
318. Any such purported distinction collapses even further to the extent cable is used
for the reception of broadcast signals otherwise unavailable (eg., distant signals imported
from broadcast "superstations") or of inadequate quality.
1987]
2. "The Child?
Children are diff
ago The Court
ere is a plausible
under the first amel
the extent that bott
evaluate the expres
deemed to lack the
'cion such as racial •
,one could argue th;
;iron of such materia
i ifnngement on fre
orof others as spei
On the other ha
'improper to reduc(
what is appropriate
iovocative materia
regulation of indec(
::casting and cable.
`amendment rights,
'With broad govemr
t children equall
'Completely bann
meation. Restrictin
when most people
pth programmers
ression.323 Gover
`V319, R. Rodgers & O
:f 32
T0. The standard lay
T.I..O., 469 U.S. 325,. 3
warrant to search a stu
260; 264 (1981) (torts)
;like' age, intelligence an
I1.M. 552, 553, 613 P.2c
to' disaffirmance within
1.ke, 99 Wis. 2d 241,
tiacffor non -necessity i
1982). (procedure) (chili
S�°t`Ann § 13-501 (191
;' 321. See Ginsberg v. 1
sae)also FCC v. Pacifiesm
coneung) (children do
Mon of First An
c
ation
a>ssent►ng) (children
,�''.T ltiA)h . ommunic).
22T:See supra note 2
323:"See A.C. Nielsen
;viewing after 10 PJ
use they not only et
o;a
vision,�h ••
i',e4hes
•leastic'`•=:i
% 6(air
haye�'it�a
as broad ,
•e const• _��
jected; 0.a
ss, the answer»
hed because
,one
g is availablejia,
and most ,oth
ocassettes: `But,,
.sx
d cable as,o "
se both broad`
vacy interestta
terventibij
• om of choice,
g or to -allow:
s one dash
edom of choke
neither 'distt
t censorship:
"A1
ting Yearbook_A=2'
he 1983-84 season,
the lowest vievvuig
over 40 hours:: -..+6,
unities. Broadca t --
d franchises have
er 46% (39.9,mi1=_
7%, Broadcasting,,
1987, almost.7,5."d
87, at 62. ,.:4*
n subscribers); b
2d 143, 209 n24.
-1990 at 11 (198
ustry growth):¢"
at broadcast televl
and, therefore; of
u
upra notes 217-25
xtent cable is used, cs
t signals imported'.
19
THE SIGNAL CABLE SENDS • 521
"The Children, The Children, I'll Not Forget the Children"319
tt Children are different, and this basic fact is reflected throughout the
32° The Court's rulings in Ferber and Ginsberg bear this out. And
Imre is a plausible rationale for treating children somewhat differently
` under the first amendment. Freedom of expression is meaningful only to
;the extent that both speaker and listener can appreciably understand and
.js,evaluate the expression and make choices regarding it. Children may be
tideemed to lack the full capacity to understand certain kinds of expres-
sion such as racial propaganda or sexually explicit material. As a result,
one could argue that some restrictions on the unsupervised communica-
tion of such material specifically directed at children entail no significant
infringement on freedom of expression either of the children as listeners
or of others as speakers.321
On the other hand, the Court consistently has maintained that it is
improper to reduce the adult population to reading and viewing only
what is appropriate for children, so as to protect children from sexually
provocative materia1.322 Solicitude for children, then, justifies neither the
regulation of indecency on television nor different regulation for broad-
casting and cable. Such regulation inevitably abridges adults' first
amendment rights, improperly usurps a discretionary parental function
with broad governmental fiat, and ignores less restrictive means to pro-
tect children equally available in broadcasting and cable.
Completely banning indecency on cable eliminates protected commu-
nication. Restricting indecency to late evening and early morning hours,
when most people are asleep, also substantially intrudes on the rights of
both programmers and viewers by effectively precluding protected ex-
pression.323 Governmental regulation cannot single out the youthful
319. R. Rodgers & O. Hammerstein, The King and I (1951).
320. The standard law school core curriculum illustrates this. See, e.g., New Jersey v.
T.L.O., 469 U.S. 325, 338-40 (1985) (constitutional law) (school officials do not need a
warrant to search a student); Camerlinck v. Thomas, 209 Neb. 843, 851, 312 N.W.2d
260, 264 (1981) (torts) (child held to standard of conduct only of reasonable person of
like age, intelligence and experience under the circumstances); Sisneros v. Garcia, 94
N.M. 552, 553, 613 P.2d 422, 423 (1980) (property) (minor's conveyance of land subject
to disaffirmance within a reasonable time after minor reaches majority); Halbman v.
Lemke, 99 Wis. 2d 241, 245, 298 N.W.2d 562, 564-65 (1980) (contracts) (a minor's con-
tract for non -necessity item is void or voidable at his option); Fed. R. Civ. P. 17(b) (c)
(1982) (procedure) (child may lack capacity to sue without a representative); Ariz. Rev.
Stat. Ann. § 13-501 (1985) (criminal law) (age of responsibility statute).
321. See Ginsberg v. New York, 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring);
see also FCC v. Pacifica Found., 438 U.S. 726, 757-58 (1978) (Powell, Blackmun, JJ.,
concurring) (children do not have "full capacity for individual choice which is the pre-
supposition of First Amendment guarantees"); id at 768 n.3 (Brennan, Marshall, JJ.,
dissenting) (children may be incapable of evaluating ' the content of certain
communication).
322. See supra note 216.
323. See A.C. Nielsen Co., supra note 206, at 8 (showing the dramatic decline in televi-
sion viewing after 10 P.M.). Such alleged "time, place and manner" regulations must fail
because they not only channel expression but, in fact, curtail it. Moreover, they improp-
t
Si
•
n
522 FORD. HAM LAW REVIEW
[Vol. 55
portion of the viewing audience without impermissibly encroaching on
the constitutional rights of adults.324
In the home, however, parents can more precisely control what their
children watch and appropriately balance the rights of adults and the
interests of children. Parents are best able to make individualized dis-
criminating judgments concerning household viewing habits, not only
with regard to sexual material but also as to excessive or graphic violence
or other matters of individual sensibilities. .The Supreme Court long has
largely deferred to a parent's right to control the development and up-
bringing of his children.325 Thus, regulations that would exclude or limit
constitutionally protected programming for adults cannot be justified on
the basis of what parents choose to do or fail to do.
Parental authority, then, is the proper control over what children
watch on television. There is, therefore, no basis for distinguishing be-
tween cable and broadcasting for indecency regulation because that au-
thority can be exercised equally well with either medium. This is obvious
when direct adult supervision is possible. When children are un-
1987]
supervised, prof
;;;,.both cable and 1
'availability of a
jing;, even withoi
restrictive mean
merit regulation,
. Societal
?.Societal justifi
cast or cable tel
tastes and sensib
he wide availab
alis for differen
are insufficient t
programmers an
erly are based on content. Community Television of Utah, Inc. v. Wilkinson, 611 F.
Supp. 1099, 1100, 1116-17 (D. Utah 1985), af,�'d sub nom. Jones v. Wilkinson, 800 F.2d
989 (10th Cir. 1986) afd mem., 55 U.S.L.W. 3643 (U.S. Mar. 23, 1987) (No. 86-1125);
see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515-517 (1981) (ordinance
banning certain billboard signs is not a time, place, and manner restriction because it is
based on content); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537
(1980) (holding unconstitutional a prohibition of utility bill inserts that discuss issues of
public importance because based on content); cf. Young v. American Mini Theatres, Inc.,
427 U.S. 50, 84-86 (1976) (Stewart, Brennan, Marshall, and Blackmun, JJ., dissenting)
(first amendment prohibits content -based zoning restrictions on theaters that exhibit non -
obscene, but sexually oriented, films). But see City of Renton v. Playtime Theatres, Inc.,
106 S. Ct. 925, 929 (1986) (zoning restrictions on adult theaters were aimed at secondary
effects of the theaters on the surrounding community, not at content of films).
324. All portions of the viewing day contain a significant children's audience. For
example, for all children, the smallest identifiable viewing period is Monday through Sun-
day, 11 P.M. to 1 A.M. Even so, this period comprises 1% of all television viewing for
children aged 2-5, 2% for children aged 6-11, 6% for male teenagers, and 5% for female
teenagers. A.C. Nielsen Co., supra note 206, at 8-9. _ For a description of similar statistics
available to the FCC at the time of Pacifica, see Pacifica Found. v. FCC, 556 F.2d 9, 19
n.2 (1977) (Bazelon, C.J., concurring). Time channeling of indecency, therefore, can sub-
stantially burden adult viewers but cannot effectively exclude children from the audience.
Distribution of cable programming is thus very different from movie theaters, magazines,
or videocassette sales, which permit some screening of customers. This is why Ginsberg
v. New York, 390 U.S. 629 (1968), which dealt with direct sale of "so-called 'girlie'
magazines" to minors, is not applicable in the cable context. See id at 631. See supra
note 88.
325. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213 (1972) (parents may remove
children from public school if continued attendance would substantially infringe on legiti-
mate religious beliefs); Ginsberg v. New York, 390 U.S. 629, 639 (1968) ("The prohibi-
tion against sales to minors does not bar parents who so desire from purchasing the
magazines for their children."); Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925)
(state may not unreasonably interfere with the right of parents to direct their children's
upbringing and education); see also Pacifica Found. v. FCC, 438 U.S. 726, 769-70 (1978) '
(Brennan, Marshall, JJ., dissenting) (the Court "has consistently been vigilant" in pro-
tecting the "time-honored right of a parent to raise his child as he sees fit").
No viewer is a
:avoid or turn awl
sensibilities i
ewer may suffer
set or scanning t:
Again there is
::number of chant
increase the pote
cat
sting feature, h
most likely to giN
:or'electronically
'ures such as prof
. troi is screening 1.
y `.f ; It is therefore b
Feapense of some 1
icidents, after all
folerate.327 That
By`choosin to wl
-- able prophylactic
' ' ' arse and mu
Tpproach would
nate` and sensibil
'gi :6ffends one 1
daand scenes
_
26�See sup'ra note
27;x. See' Erznoznicl
ilbrna' 403 Uei.S. 1
28i;
;GoldstA1 n,
hat thein
and th'
ed
not only
violeicel
'E
long lits;,
and up`
or
tified on4
children'
hing
that au- j;;'
obvious ;
are un -
n, 611 F.
, 800 F.2d
. 86-1125);, {:',,y
(ordinance'. ..„,?;;!P1
ause it is ,:r±:+
. 530, 537
s issues of
atres, Inc.,
issenting)
'bit non-
tres, Inc.,
secondary
ence. For
ough Sun-
'ewing for
for female
statistics =s
F.2d 9, 19
, can sub -4
audience.'
agazines,
Ginsberg ay
ed
See supra61,
y remove
on legiti-,Y9
e prohibi- µ4'
asing
34 (1925)'f,'
children's ;?t
70 (1978) "::;
"
in pro-
-1987]
:supervised,. program guides and the electronic technology available for
both cable and broadcasting can provide the desired control. Indeed, the
availability of a simple lock to prevent all unsupervised television watch-
ing, even without more refined technology, should be an adequate, less
restrictive means of control sufficient to preclude any broader govern-
`: ment regulation.
THE SIGNAL CABLE SENDS
523
C. Societal Justifications for Controlling Indecent Programming
Societal justifications for controlling indecent programming on broad-
cast or cable television depend on two concerns: a respect for individual
tastes and sensibilities, and the harm to society that allegedly flows from
the wide availability of indecent material. Neither of these provides a
basis for differential treatment of cable and broadcasting. Further, they
are insufficient to override the substantial first amendment interests of
programmers and willing viewers.
1. Individual Tastes and Sensibilities
No viewer is a captive audience of either cable or broadcasting; he can
avoid or turn away from either with equal ease. The concern for individ-
ual sensibilities is thus limited to the momentary affront an unwilling
viewer may suffer when accosted by offensive material in turning on the
set or scanning the dial.
Again there is no significant difference between the media. The large
number of channels and diverse programming available on cable may
increase the potential incidents of momentary offense. Cable's narrow-
casting feature, however, makes it easier to identify which channels are
most likely to give offense, and thus to be excluded altogether, avoided,
or electronically screened.326 Moreover, the various prophylactic meas-
ures such as program guides, prior or simultaneous warnings and elec-
tronic screening are available for either medium.
It is therefore better to preserve first amendment freedoms, even at the
expense of some brief incidents of offense to sensitive individuals. Such
incidents, after all, are the stuff of daily life that individuals must learn to
tolerate.327 That they occur in the home does not alter this conclusion.
By choosing to watch either cable or broadcasting and by ignoring avail-
able prophylactic measures, an individual consents to enter into public
discourse and must accept the rough edges of that process. A contrary
approach would be inimical to first amendment dictates and values.
Taste and sensibilities are highly individualistic; sexually graphic mate-
rial offends one person, violence a second, hard rock movie videos a
third, and scenes of starving children in Ethiopia a fourth.328 Once we
326. See supra note 289 and accompanying text.
327. See Erznoznick v. City of Jacksonville, 422 U.S. 205, 210-11 (1975); Cohen v.
California, 403 U.S. 15, 25 (1971).
328. Al Goldstein, publisher of Screw magazine, powerfully criticizes the arguably
524 FORDHAM LAW REVIEW
[Vol. 55
v4 1987]
With regard
proach. The S
s`: evolving co;
can be curtails
deemed not to
gelation. If
subscribers' ma
nel either on cl
It is highly c
damaging on a
Inagazine.332 A
and thus has a
t7cassivity of tel
,pbseful mental
;quires., Televisa
oks or magaz
begin cleansing the television screen of all that is even momentarily ob-
jectionable to a myriad of living room viewers, there is no end in sight.
The first amendment is thus hopelessly eroded and the result is a worth-
less medium.
2. Harm to Society
Concern for individual tastes and sensibilities is based on direct, imme-
diate, and specific harm to a given individual. Concern for harm to soci-
ety from a debasement of morals, values and attitudes is, by contrast,
vague, general and indefinite and relates only indirectly to harm to any
given individual. Centuries of debate have dealt with the evil effects and
possible benefits of obscenity.329 Decades of debate have dealt with the
effects of television programming, especially violence, on viewers in gen-
eral and children in particular.33o
strange values that bar sexually explicit material from the television screen while not
restricting brutal scenes of graphic violence, often directed at young women, that is the
standard fare of many television movies. Goldstein produces Midnight Blues, a late-night
sex show aired on Manhattan Cable's public access channel in New York City. He has
editorialized on this program by juxtaposing scenes from Midnight Blues censored by
Manhattan Cable, such as a woman masturbating and two nude women making love,
with scenes from movies such as Friday the Thirteenth and Halloween. Goldstein notes
that Home Box Office, Inc., the owner of Manhattan Cable, has no compunction about
showing such movies on prime time, even though they include deliberately gory scenes of
vulnerable young women being terrified and brutalized by stabbings, strangulations,
slashed throats, decapitations, heads split open by hatchets, and violent rape. Goldstein
questions the ethics of showing such movies on Home Box Office, which proclaims that
while it airs "R" -rated movies it will not allow "X" -rated ones, while censoring totally
nonviolent but sexually explicit material. In Goldstein's more colorful language, blood
not sperm is acceptable; penetration with a meat cleaver but not a male sex organ; a
breast can be shown only if there is a knife in it. See excerpts from Midnight Blues, (show
No. 404, Mar. 26, 30, 1984) (videocassette on file with the author); see also Goldstein,
Cable TV's Shame: "Gore-nography", N.Y. Times; July 3, 1984, at A15, col. 5.
329. See generally F. Schauer, Free Speech: A Philosophical Enquiry 178-88 (1982). It
remains true, however, that "[t]he Supreme Court has never definitively explained the
justification for regulation of obscenity." Pacifica Found. v. FCC, 556 F.2d 9, 22 n.14
(D.C. Cir. 1977) (Bazelon, C.J., concurring), rev'd, 438 U.S. 726 (1978). See M. Redish,
Freedom of Expression: A Critical Analysis 68-76 (1984).
330. See generally W. Rowland, The Politics of TV Violence (1983); Krattenmaker &
Powe, Televised Violence: First Amendment Principles and Social Science Theory, 64 Va.
L. Rev. 1123 (1978); Prettyman & Hook, The Control of Media -Related Imitative Vio-
lence, 38 Fed. Comm. L.J. 317 (1987). Nevertheless, for an argument that the "extensive,
avid, and seemingly decisive" body of research on the effects of watching television "is
one of the grandest travesties in the uneven history of social science" akin to the 19th
century "science" of craniology, see Fowles, The "Craniology" of the 20th Century: Re-
search on Television's Effects, Television Quarterly, Summer 1984, at 61.
Regardless of the merits of social science research about television, the legal standard
should be clear: Any generalized ill effects asserted to result from television program-
ming must be compellingly demonstrated before first amendment rights can be overrid-
den. Indeed, such a rigorous standard has been applied in far more particularized
circumstances. See, e.g., Zamora v. Columbia Broadcasting Sys., 480 F. Supp. 199, 203-
07 (S.D. Fla. 1979) (cause of action by minor, claiming that television networks' pro-
gramming stimulated him to duplicate acts of violence, barred by first amendment);
Olivia N. v. National Broadcasting Co., 126 Cal. App. 3d 488, 492-95, 178 Cal. Rptr.
388, 891-93 (1982
,juveniles acting up
;eould not show stir
Disney Prods., Inc
;:(action by child, in
X;b}!'first amendment
kDeFilippo v. Nati
amendment bars w:
tally hanged himse
could not be constr
:4648, 539 P.2d 36,
II* automobile asci,
'_roving disc jockey).
;4,331. One might
Playboy Channel. I
inercial, institution.
.-reluctance to accep
for it. See Congress
cf =;More Stations A
:Might happen, how(
sign without the ini
Nolays implies that sc
should watch. The
>both'cable and brow
wY
On an inferior r
: t,might raise son
ental concern. Th
332; The notion tl
tion owes its ji
.K0082; 1100-01
Gbregulation of c
FB;Sys.; v. Democra
more problematic th
bstantially reconsi,
!{s"tl!ity in the indecc
Press, 1975 Dul
,n 24 (D.C. Cir. 1
A
momentarilys';
no end in`sig
esult is a `Rio�l
on direct,
or harm to'' of
is, by con.`"-'
. • z:
to harm t'o`any
evil effect 1f
e dealt
with"the..
t viewers in en=,
al screen while not
women, that is `they';
t Blues, at Late-night
York City. He
Blues censored
omen making love,
7n. Goldstein notes.
compunction about.
gory scenes'of?.
ately`�'�
: •`-
figs, strangulations;',
:nt rape. Goldstein
iich proclaims that;
fe censoring totally;
ill language, blood.'
male sex organ;‘'' 'F
(night Blues, (sho"w;
see also Goldstein;.;;;,
15, col. 5.
y 178-88 (1982). It,
vely explained the;
56 F.2d 9, 22 n.14`.'}
3). See M. Redish,
; Krattenmaker &
Ice Theory, 64 Va:
ted Imitative i?o ,
hat the "extensive,,'.
ping television ',II.
' akin to the 19th
20th Century: Re
61.
the legal sten • ,
levision program
is can be override'
)re particularized. -C
Supp. 199, 203-,
rn networks'
first amendment);
5, 178 Cal. Rptr.:S
t. .
t-,.
1987] THE SIGNAL CABLE SENDS 525
With regard to indecency on television, however, there is a simple ap-
proach. The Supreme Court's interpretation of the first amendment, in
its evolving concept of unprotected obscenity, delimits what expression.
can be curtailed. Material that does not sink to the level of obscenity is
f deemed not to pose a sufficient threat to society or its morals to justify
regulation. If Playboy magazine cannot be excluded from newsracks or
subscribers' mailboxes, there is no reason to regulate The Playboy Chan-
nel either on cable or broadcast television.33 t
It is highly dubious that similar indecent material is potentially more
damaging on a television screen than between the covers of a book or
magazine.332 Although material on a television screen is more "alive"
and thus has a greater sensory impact, this impact is lessened by the
passivity of television watching, which does not require the same pur-
poseful mental involvement that reading or viewing printed matter re-
quires. Television viewing is also a more public activity than reading
books or magazines and, therefore, subject to more constraints on its use,
888, 891-93 (1982) (tort action against network by young girl, artificially raped by
juveniles acting upon stimulus of network television drama, dismissed because plaintiff
could not show stimulus amounted to incitement required by the first amendment); Walt
Disney Prods., Inc. v. Shannon, 247 Ga. 402, 404-06, 276 S.E.2d 580, 582-83 (1981)
(action by child, injured while mimicking trick on children's television program, barred
by first amendment because it did not create a "clear and present danger" of such injury);
DeFilippo v. National Broadcasting Co., 446 A.2d 1036, 1040-41 (R.I. 1982) (first
amendment bars wrongful death action against network by parents of boy who acciden-
tally hanged himself while imitating stunt seen on network program because broadcast
could not be construed as incitement). But see Weirum v. RKO Gen., Inc., 15 Ca1.3d 40,
46-48, 539 P.2d 36, 39-40, 123 Cal. Rptr. 468, 471-72 (1975) (radio station may be liable
for automobile accident caused by negligence of participants in station's contest to locate
roving disc jockey).
331. One might recoil at the thought of, say, CBS transforming itself into another
Playboy Channel. This, of course, is not likely to happen. Too many countervailing com-
mercial, institutional, and societal pressures exist. Indeed, witness the networks' great
reluctance to accept condom advertisements despite the many "respectable" advocates
for it. See Congress Considers Condom Commercials, Broadcasting, Feb. 16, 1987, at 65 ;
cf More Stations Accepting Condom Spots, Broadcasting, Feb. 23, 1987, at 41. What
might happen, however, is that, for example, mainstream movies will be shown on televi-
sion without the infamous and disheartening legend "Edited for Television," which al-
ways implies that someone at the network knows better than the viewer what he or she
should watch. The teaching of the first amendment is that, unless the television medium,
both cable and broadcasting, is as free as the print media to be both bad and good, it will
remain an inferior medium. Should Time magazine decide to become another Playboy,
that might raise some journalistic concerns. It would not, however, be a proper govern-
mental concern. The same should be true for television.
332. The notion that the special psychological impact of television might justify certain
regulation owes its judicial origins to Judge Bazelon's comments in Banzhaf v. FCC, 405
F.2d 1082, 1100-01 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969), which upheld
FCC regulation of cigarette commercials. See id. at 1002; see also Columbia Broadcast-
ing Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 128 (1973) (broadcast advertising is
more problematic than print because it cannot be as easily ignored). But Judge Bazelon
substantially reconsidered his position in a later article, and disavowed the theory's appli-
cability in the indecency context. See Bazelon, FCC Regulation of the Telecommunica-
tions Press, 1975 Duke L.J. 213, 222 (1975); see also Pacifica Found. v. FCC, 556 F.2d 9,
26 n.24 (D.C. Cir. 1977) (Bazelon, C.J., concurring), rev'd, 438 U.S. 726 (1978).
It
}
ie
526 FORDHAM LAW REVIEW [Vol. 55
in particular greater parental control. The television set cannot easily be
kept under a mattress and quietly watched behind a garage. Books and
magazines, however, are more easily obtained, more permanent, avail-
able at all hours, and more susceptible to private use. In •short, .they are
more "pervasive" and, therefore, harder to control. Printed material also
lends itself to episodic use while television requires more sustained
watching, thereby placing any objectionable portions into whatever re-
deeming context the program offers. •
Moreover, the supposed power of television, whether derived from its -
special psychological or persuasive impact,333 or simply from the vast
audience it reaches, does not justify increased government control. In-
deed, such a rationale would invert traditional first amendment theories
because the greater exposure or communicative impact a medium has the
more it needs, and probably deserves, first amendment protection.334
Thus, when the FCC recently argued that broadcasting has particular
power and immediacy that justifies its different first amendment treat-
ment, a panel of the District of Columbia Court of Appeals, including
Judge, now Justice, Scalia, responded: "Whether or not that is true, we
are unwilling to endorse an argument that makes the very effectiveness of
speech the justification for according it less first amendment
protection."335
In sum, concern for harm to society from the proliferation of indecent
material should not distinguish the medium of home television. But even
if the nature of this medium is considered important on the basis of an
333. A recent study shows that the public prefers television to newspapers as a source
of reliable news, but they generally were ranked about equal as to their credibility, accu-
racy, and completeness. See MORI Research, Inc., Newspaper Credibility: Building
Reader Trust, 13, 20, 40-43 (1985) (national study commissioned by The American Soci-
ety of Newspaper Editors).
334. Chief Justice Earl Warren made this point eloquently in dissenting from a deci-
sion that upheld a prior review statute for motion pictures:
[E]ven if the impact of the motion picture is greater than that of some other
media, that fact constitutes no basis for the argument that motion pictures
should be subject to greater suppression. This is the traditional argument made
in the censor's behalf; this is the argument advanced against newspapers at the
time of the invention of the printing press. The argument was ultimately re-
jected in England, and has consistently been held to be contrary to our Consti-
tution. No compelling reason has been predicated for accepting the contention
now.
Times Film Corp. v. City of Chicago, 365 U.S. 43, 77 (1961) (Warren, C.J., Black, Doug-
las, Brennan, JJ., dissenting); see also American Booksellers Ass'n v. Hudnut, 771 F.2d
323, 330 (7th Cir. 1985) (the assumed power of pornography to affect attitudes and per-
petuate subordination of women is no basis for its regulation), aff'd mem., 106 S. Ct. 1172
(1986); Freedom of Expression Act of 1983, Hearings on S. 1917 Before the Senate
Comm. on Commerce, Science and Transportation, 98th Cong., 2nd Sess. 80 (1984)
(statement of Floyd Abrams, attorney) ("The Govement should, at the very least, be no
more empowered to regulate the means of communicationnwith the most impact on the
public than to regulate other modes of communication.").
335. Telecommunications Research & Action Center v. FCC, 801 F.2d 501, 508 (D.C.
Cir. 1986) (determining which political broadcast regulations apply to teletext), petition
for cert filed, 55 U.S.L.W. 3608 (U.S. Feb. 20, 1987) (No. 86-1370).
•
V
+1-
1487]
1987]
assumed diff
hAGf
lathe. Agair
1,1
:In an ear:
should be ca
fiist 'amends
broadcast mf
p=int media.
perpetua
.range of regi
ccess provis
The cable
iSo far they 1
tnconvincin€
Casting. Suc
furred, unifies
Ya meaningful
:the home wh
substantialsr- ae
pother •is restr
substitute
:cency contro:
336. The chi:
Leamount of age -s
cause one focus
"children's comp,
went children's
dren's program!
programming di
I'same service the
conflicting argur
ble to children.
x.,634, 646 (1984)
as
4
r)
. Books an
anent, avail
ort, the? -4.
aterial moo.
re sustaini
hatever re
s4
ved from its
om the vasty.
(control. In
'lent theories
j,ium has the.
rotection.3r
'�5 particulars .
�ment treats:
Is, including .3t
t is true, we';
activeness
,amendments
of indecent
In. But even.
basis of an:
ers as a sourcel.,',".
',dibility, accu >,
ility: Building ,
,.merican Soci-7;,',
from a deci-'
me other
pictures
ent made
yrs at the
ately re-
Consti-
ntention
•
Black, Doug-
ut, 771 F.2d
des and per
6S.Ct. 11724
e the Seaitc '
s. 80 (1984),
least, be no`s,:},:.
pact on the.',;p'�
1, 508 (D.C.:k
ext), petition'"
THE SIGNAL CABLE SENDS
527
assumed difference in impact, the impact of cable and broadcasting is the
same. Again, there is no reason to treat the two differently.
V. CONCLUSION
In• an earlier Article, I argued that cable and broadcast television
should be considered a single, unified medium, thereby maximizing the
first amendment protection each should enjoy. In fact, the cable and
broadcast media thus become constitutionally indistinguishable from the
print media. Indeed, I showed that differentiating cable and broadcast-
ing perpetuates problematic government restrictions on each across a
range of regulations including economic controls, the fairness doctrine,
access provisions, and children's programming.336
The cable indecency cases present a problem in this regard. Although
so far they have reached the right result of no censorship, these cases
unconvincingly assert that cable is fundamentally different from broad-
casting. Such arguments are unsupportable and inimical to thepre-
ferred, unified approach. To say that one of the two media is pervasive in
a meaningful way and that the other is not, or that one is an intruder into
the home while the other is an invited guest, or that one is accessible to a
substantial and important segment of viewers—children—to whom the
other is restricted, contradicts the fundamental notions of their similar-
ity, substitutability, and competitive relationship simply to avoid inde-
cency controls that are more fatally flawed in their own right.
336. The children's programming issue concerns the availability of an adequate
amount of age-specific programming for children. This is particularly relevant here be-
cause one focus in the indecency area is to distinguish cable from broadcasting based on
children's comparatively limited access to cable. Yet the FCC relied on cable to supple-
ment children's broadcast programming in deciding not to mandate the amount of chil-
dren's programming broadcasters must provide. In doing so, the FCC included some
programming directed at children on pay cable services, such as Home Box Office, the
same service that has figured prominently in most of the cable indecency cases. The
conflicting arguments, therefore, consider Home Box Office both accessible and inaccessi-
ble to children. See Advertisng & Programming on Children's Television, 96 F.C.C.2d
634, 646 (1984) (rep. & ord.). See generally Winer, supra note 3, at 278-82.
t.