Over 2000 public access channels exist nationwide(note 3) allowing for more than 10,000 hours of original programming each week.(note 4) City council meetings, church services, and aspiring television stars make up most of these access schedules. Recently, though, alternative and minority viewpoints of a far more controversial nature have begun to appear. Viewers are watching or may soon be watching these programs in their communities:
With this new wave of controversial material, the Federal Communications Commission (FCC or Commission), access users, and local cable operators have found themselves in a First Amendment battle over what material should be allowed on public access channels, when such material can be shown, and who should be liable when access regulations are violated.
Congress in 1984 passed the Cable Communications Policy Act in an attempt to create uniform content regulation of public access.(note 8) Under this Act, cable operators were allowed to set aside channels in their franchise agreements for public, educational, or governmental (PEG) use in exchange for franchise exclusivity.(note 9) The Act gave the operator no editorial control over these channels, except for the right to forbid obscenity, and granted the operator power only over what time the program aired.(note 10) With these limits, the cable operator was immune from liability for any show aired on public access.(note 11) These rules, at least in theory, helped public access symbolize "the widest possible diversity of information sources and services to the public."(note 12)
With the rising use of access for hate shows and indecent material, Congress returned to public access programming with the Cable Television Consumer Protection and Competition Act of 1992.(note 13) This Act modified the previous rules by removing a cable operator's immunity for programs that feature obscene material.(note 14) At the same time, the provision which barred cable operators from exercising any editorial control over content remain unchanged.(note 15) Congress also allowed the FCC to create rules that would prevent children from viewing indecent material on public access.(note 16)
The United States Court of Appeals for the District of Columbia Circuit stayed the FCC rules on November 23, 1993. In Alliance for Community Media v. FCC, the court held that it was unconstitutional to give an operator control of public access content because the operator becomes an agent of the government.(note 17) On February 16, 1994, the D.C. Court of Appeals vacated its judgment in Alliance and granted a rehearing en banc.(note 18) As all sides wait for the ultimate outcome in this case, public access producers attempt to maintain their hold in the expanding cable channel spectrum.
This Note will argue that even though some viewers find programs such as those previously cited tasteless and indecent, this should not justify recent actions by the FCC and Congress which threaten to severely limit the diversity of public access. The trend towards governmental prohibition of program content takes the power of public access away from the people. As the number of cable channels continues to increase, the need for a channel that allows the public an outlet for expression becomes increasingly important. Part I of this Note will examine the history and underlying policies of public access, FCC attempts to regulate access, and the role access should fulfill in cable. Part II will examine the difficulties the FCC has had in prohibiting certain public access programming. The Note will show how regulatory difficulties stem in part from the problems the courts have had in defining the scope of indecent material on cable television. Finally, in Part III, this Note will explore ways of assuring that the needs of the FCC, operators, and access users are met.
This Note concludes that viewers should ultimately choose which public access programs should air, through effective counter-programming and the use of blocking devices. Because of the difficulties the courts have had in creating an indecency standard for cable, operators should be limited to controlling program schedules. This structure will adequately protect minors, while public access users can continue presenting programs with the greatest possible diversity.
I.The Evolution of Public Access
While broadcast television reached most American cities by 1948, rural and remote areas found themselves unable to receive transmission signals.(note 19) In 1949, a local television salesman in Lansford, Pennsylvania, solved this problem by creating the first subscriber-cable television service, where signals were passed over wires.(note 20) Since broadcasting signals are transmitted through the air, they weaken with distance and can be blocked by geographic obstacles. With cable service, however, cable operators use antennas to receive these broadcast signals, transfer them to wire, and then retransmit them to homes through the cable, thereby reaching areas that simple broadcasts could not. This method of signal transmission by cable gradually spread to all parts of the country, improving reception and expanding the channel capacity beyond the frequency limits of the broadcast spectrum. Technological advances have made it possible to transmit over 120 channels by cable wire, and channel capacity continues to expand.(note 21)
A. Public Access and its Inception on Cable Television
Operators soon realized that cable could be used not only to
transmit pre-existing broadcast signals, but also as a medium to
present shows produced by independent parties and other
production companies. The idea of a public access channel for
local communication found inspiration with the first centralized
public television system created in Washington, D.C., in 1967.(note 22) Congress, however, asserted
control over public television content during the Nixon
administration, virtually eliminating any political or
controversial programming.(note
23)
One Canadian television producer said public access "all began in Newfoundland."(note 24) In 1967, a Canadian group created the "Challenge for Change" program, producing documentaries that chronicled the effects of poverty in Canada.(note 25) The Canadian public initially responded with hostility to these stark displays of children looking for food in the Canadian ghettos.(note 26) The producers responded by putting the choice of what to film in the hands of the group they were studying. The people living and struggling in these areas were permitted to participate in all editing and production decisions to take an active role in showing what life was like from their point of view. The experiments gave the people oppressed by poverty the freedom and ability to have a voice. Many in Canada were deeply affected by the unfiltered view of this forgotten part of society.(note 27) Allowing public control highlighted the success of cable as a communicative medium, and helped influence the Canadian government to create programs for welfare and economic reform.(note 28) The documentaries also indirectly became the catalyst for public access in America.
Dale City, Virginia, became the first American city to incorporate public access through a channel made available to the Junior Chamber of Commerce.(note 29) The program lasted only from 1969 to 1970 because of a lack of funding.(note 30) Larger cities like New York implemented public access with greater success in 1971.(note 31) These early access programs embodied a "guerilla television"(note 32) in which television became an instrument available to the subversive culture. Access proponents felt the potential for a shift in television control would help restore a "media ecological balance."(note 33) Instead of a medium that produced programming for a general audience, access users focused their programs at the individual. Communications professor Lee Thayer noted, "Communicational realities and the human institutions which are built out of them are ultimately the products of intercommunication between people, not of the mass production and mass distribution of messages."(note 34)
Cable operators have kept this "balance" between the cable system and the individual tipped in their favor because they still control the allocation of money for cable access. Limited funds have made it difficult for those involved in access to create programs that successfully meet the idea of participatory television. In order to save money, a majority of operators fill their access schedule with repeats of church sermons, community politics, and school plays. Families in Elmhurst, Illinois, had a contest to see which repeat was played more often on their access channelthe Calumet Beauty Pageant or the Elmhurst Pet Parade.(note 35)
Some operators actively promote their access channels. For example, cable operators in Dayton and Minneapolis have provided between $500,000 and $1 million for local production facilities, with over twenty portable cameras each for use by access participants.(note 36) In contrast, the "programming facilities" of many operations consist only of a bulletin board that lists events.(note 37)
Many minority groups who feel their viewpoints are not being expressed in the mainstream cable medium have pushed nationwide for facilitating the training process needed to operate and produce an access program.(note 38) These protests have led to the production of numerous community-based programs. Examples include a Chicago newsmagazine produced by and for homosexuals called The 10% Show;(note 39) a Houston show watched by hundreds of Vietnamese immigrants because it is the only program available in their native language;(note 40) and a talk-show hosted by a mother who lost two sons in a drive-by shooting, pleading for an end to gang violence in the "barrios" of Lynwood, California.(note 41)
The number of viewers of cable access channels varies in different cities. Surveys range from less than 1 percent viewership in Ventura County, California,(note 42) to 50 percent of adult viewers in Bloomington, Indiana.(note 43) Nationwide polls show that 25 percent of cable viewers have watched at least one cable access show within the last two weeks.(note 44) On average, operators and media analysts note that the number of viewers who tune in to public access is growing because the mainstream media, as exemplified by the film Wayne's World, continues to focus on the quirkiness of public-access programming.(note 45) For example, the show Biker Bill Cooks with Fire in Arizonafeaturing Bill talking about motorcycle safety tips and ways to cook jalapenoshas gained a loyal audience as Arizona newspapers have written articles on the program.(note 46) Motorsports Unlimited in Chicago has gained cult-like status with its cable viewers, featuring car aficionado Bill Wildt talking about crankshafts and the engine sizes of various carswhile his "girls," women dressed in bikinis, lie on and in the cars that are being discussed.(note 47) These programs demonstrate that the more unique the program, the greater chance it has for attracting viewers.
B. Regulation of Public Access
1. Early FCC and Congressional Attempts
The FCC originally ignored cable television, deciding
instead to focus on the "national television service."(note 48) The Commission asserted
jurisdiction over cable in 1972 after realizing that cable
television, being able to both originate and distribute
programming, created formidable competition.(note 49) One of the surprising promulgations by
the FCC required cable operators in the top 100 cable television
markets to provide three free access channelsone channel for
public use, a second for educational programs, and a third for
local government meetings.(note
50) The FCC set this mandatory rule as a trade-off: by
allowing cable operators to have free use of commercial and
public broadcast signals, the Commission could compel cable
operators to open new outlets for expression, education, and
information.(note 51)
Community access users praised the Commission's efforts. Proponents saw the rules as FCC recognition of public access, marking "cable as an institution within which the separate voices of the community may be heard."(note 52) Operators were to offer public access to users on a non-discriminatory, first-come, first-serve basis, and program operators were to have no control over program content.(note 53) Congress realized, however, that completely open access might lead to an abuse of the First Amendment, so it required operators to screen access programs for indecent and obscene material and promulgate rules prohibiting such content.(note 54) Although the FCC noted that the First Amendment did not "safeguard against unpleasantness,"(note 55) Congress wanted the FCC to ensure that the public was protected from obscenity.
However, it soon became clear that public access was not creating the impact the FCC had anticipated, as the number of access viewers and users remained small. In 1976, the FCC ruled that access channels could be combined to offset the limited hours of available programming.(note 56) The Commission also delayed the deadline date for compliance with the channel capacity requirements, but expanded the coverage of the requirement to cable systems with 3500 or more subscribers, regardless of market location.(note 57)
2. Midwest Video and the Obstacles to Public Access
The Supreme Court held in Southwestern Cable Co. that
because of the competitive threat cable posed to broadcast
television, the FCC could assert jurisdiction over cable systems
as long as it was "reasonably ancillary" to the Commission's
responsibility for regulating broadcast television.(note 58) Relying on this holding, Midwest Video
Corporation and the American Civil Liberties Union (ACLU)
successfully appealed to the Eighth Circuit, and ultimately to
the Supreme Court, to strike down the FCC requirements for public
access.(note 59)
The Eighth Circuit held the mandatory access rules "burst through the outer limits" of the FCC's jurisdiction.(note 60) Because the concept of open access on separate cable channels had no relation to broadcast television or the "retransmission of broadcast signals on existing channels," the interaction between cable and broadcast was absent.(note 61) Therefore, the FCC's access rule was not reasonably ancillary to the delegated scope of FCC cable regulation. While the court of appeals commended the FCC's efforts to provide a variety of voices on cable, the court noted that "[r]hetoric in praise of objectives cannot confer jurisdiction."(note 62)
The FCC was also held to have imposed an unconstitutional burden on the cable operator by requiring the cable operator to create a channel for a public forum with non-discriminatory access, while placing an obligation on the operator to suppress obscene or indecent content.(note 63) The court held the Commission failed to provide the procedural safeguards required of governmental "prior restraints" which include judicial proceedings and a prompt determination of the content that is being prohibited.(note 64) The FCC's rule, in effect, made the cable operator both "judge and jury," and, coupled with the operator's personal desire to satisfy the Commission and avoid sanctions, would have hurt access users by enlisting the operator "on the `safe' sidethe side of suppression."(note 65)
3. The 1984 Cable Communications Policy Act
The Eighth Circuit's and Supreme Court's scrapping of the
mandatory access rules did not end the growth of cable access, as
most cable operators still included an agreement for access
channels in their franchise proposals.(note 66) This was a direct result of the cable
franchising system, whereby local governments would demand from
cable franchises certain concessionslike an access channelin
exchange for the cable system's use of public land to construct
its facilities.(note 67)
In 1980, Congress began to push to amend the 1934 Communications Act. As demonstrated by cases such as Midwest Video, the courts and government were unclear about the scope of the FCC's power to regulate cable television. After four years and numerous requests from cities confused by the boundaries of allowed regulation, Congress passed the Cable Communications Policy Act of 1984, the first federal legislation for cable.(note 68) Congress wanted to relieve the cable industry from unnecessary regulationsuch as limits on cable rates and franchise fees(note 69)and declared prohibitions on "redlining," where cable operators would refuse to wire low-income areas.(note 70)
Congress also enacted the 1984 Act to ensure that cable systems remained responsive to the needs of the public.(note 71) Public access again became one of the focal points of regulation. Cable had evolved into the most prevalent form of broadcast transmission, which meant that the breadth of channel capacity could support diversity. The House Report stressed a congressional desire that public access again become meaningful"the video equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet"(note 72) where cable operators act as a "conduit" for programming.(note 73)
Congress simply codified the common practice at that timefranchising authorities could (and almost always did) include in their proposals a statement that they would reserve channels for public, educational, or government use.(note 74) Operators were to treat access users on a first-come, first-serve basis. Congress further declared that a cable operator could not exercise any editorial control over the use of the designated access channel.(note 75) To avoid constitutional problems and operator liability, the 1984 Cable Act granted operators full immunity from any liability for any program carried on an access channel.(note 76) A cable operator, however, could still set forth limited technical standards, budgetary constraints, and regulations on the use of cable facilities.(note 77) Operators could also provide a scrambling device (usually a lockbox) on a subscriber's request, which allowed the subscriber to selectively block reception of material.(note 78)
4. The 1992 Cable Television and Consumer Protection Act
The cable television industry continued to grow after 1984.
Over 60 percent (approximately 56 million) of American households
subscribed to cable television in 1991.(note 79) This led to unforeseen problems of
ownership,(note 80) cable rates,(note 81) and use of retransmitted
broadcast television signals.(note
82) Cable operators had also reacted with growing nervousness
toward public access after the 1984 Act provisions. Some access
programs began to push the edge of indecency and obscenity. From
images of stripteasers and sexual activities on the program
Dull-A-Vision in Austin, Texas,(note 83) to a religious group's airing of an
abortion in Ventura County, California,(note 84) cable subscribers in various
communities wanted to choose what was being shown on public
access. Bill Schricker, programming director for Jones Intercable
in Tampa, Florida, spoke for many operators when he answered
critics of certain access shows by "throwing up his hands and
ask[ing], `[W]hat do you want us to do? We are powerless to
prohibit or suspend.'"(note 85)
Congress attempted to appease both operators and subscribers by enacting the Cable Television Consumer Protection and Competition Act of 1992.(note 86) Congress created the 1992 Cable Act after conducting three years of hearings on the structure and operation of the cable television industry.(note 87) One of Congress's goals was again to further the "substantial governmental and First Amendment" interests of promoting diverse viewpoints through "multiple technology media."(note 88) Congress gave the FCC authority to promulgate rules for operator prohibition of certain controversial programs and made the operator liable for the content.(note 89) Congress deemed these changes necessary to protect children from obscene and indecent subject matter.(note 90)
In late 1992, the Commission commenced informal rule making to set forth guidelines for cable operators in their prohibition of obscenity, sexual explicitness, or programs soliciting unlawful conduct.(note 91) The Commission defined sexually explicit conduct within a generic "indecency" standard.(note 92) These proposed rules and definitions set forth broad parameters within which programs could be prohibited.(note 93) Further, the FCC created a certification process where users would have to certify their programs did not contain any material that fit into one of the prohibited statutory categories.(note 94)
Access users and cable operators quickly objected to these rules. Arguments opposing the proposed rules ranged from the potential for "its chilling effect on the use of public access"(note 95) to the exorbitant costs required to pre-screen every program, even the "call-in astrology" shows, for statutory compliance.(note 96) In Alliance for Community Media, the ACLU and community access groups challenged the constitutionality of these access content regulations.(note 97)
5. Overturning the 1992 FCC Access Regulations
Access proponents appealed to the Court of Appeals for the
D.C. Circuit in Alliance for Community Media that the
public access of the 1992 Act and the ensuing FCC promulgations
were impermissibly broad and enacted without proper procedural
safeguards.(note 98) Even though
it was the private operator who was to have the choice of content
prohibition, the three-member panel of the court looked at the
relationship between the operator and the FCC.(note 99) When a government agency encourages a
private actor to prohibit material that it could not do itself,
that close influential nexus creates an unconstitutional state
action.(note 100) The court used
a three-part test to scrutinize the FCC regulations examining:
the immediate objective, the context in which the specific
authorization to ban indecency was issued, and the ultimate
effect of the FCC regulations.(note
101) Because the operator was given such overt encouragement
to prohibit material, the operator in essence acted like the
FCC's private agent, which resulted in unconstitutional state
action.(note 102) "[T]he
government has stripped the cable operator of any editorial
control over cable access channels except for programming the
government wishes to suppress."(note
103)
The court recognized that the government had a compelling state interest in protecting children from viewing indecent material.(note 104) Relying on its 1991 decision in Action for Children's Television, however, the court held that a complete ban on indecent material, similar to what was attempted on broadcast television, was unconstitutionally overbroad.(note 105) The FCC had failed to show that cable television deserved any different regulation from broadcast, and the court held that providing some safe time harbor or other less restrictive alternative would have to be enacted by the FCC for effective protection.(note 106)
The court continued the stay of the FCC regulations until a resolution on remand. However, on February 16, 1994, the court vacated its November 23, 1993, ruling and granted a rehearing en banc for review by the full Court of Appeals for the D.C. Circuit.(note 107) While the three justices who decided the initial Alliance holding were President Carter appointees, the full court is comprised primarily of appointees of Presidents Reagan and Bush.(note 108)
As noted in the Midwest Video case, granting the operators authority to ban certain programming, while removing immunity for liability, creates the potential for overzealous prohibition. Striking down the 1992 rules would ensure that the original intent of public access remains, thereby giving a voice to those outside the mainstream to present their message in a way they see fit.
As cable's popularity and the number of child viewers continues to grow, the problem of protecting children from these controversial access programs remains. As one access system spokesperson put it, the courts, access users, and operators have only created a temporary solution "in search of a problem."(note 109)
An example of what some see as the reason for access and others view as the prime example of the need for greater content regulation is Channel V (formerly Channel J) of the Manhattan Cable System in New York. In 1976, New York created its public access channel without a great deal of publicity. One of the few who did attempt to use public access was former radio disc jockey Alex Bennett.(note 110) According to Bennett, "It wasn't like a gold rush to get on. Hardly anyone knew about it."(note 111) Bennett, along with Al Goldstein, the founder of the adult magazine Screw, launched the access program Midnight Blue, an exploration into the perverse side of New York City life.(note 112) Al Goldstein wanted to reach a part of society he felt went unnoticed. Goldstein said, "There is a stifling silence out there that doesn't authenticate my reality, the reality of men obsessed with sex."(note 113) Installments of the program included a 400-pound stripper, a double-jointed contortionist named Mr. Infinity, and a dominatrix who whipped a middle-aged Englishman dressed in a maid's costume.(note 114) Midnight Blue also launched the career of Robin Byrd, a sex-show performer dressed in a G-string, dubbed the "X-Rated Ed Sullivan" of cable access, who interviews strippers and pornographic film stars.(note 115)
Al Goldstein, who recently became a member of the National Press Club, faces constant allegations of obscenity and legal pressure to remove his programs from the cable access channel, but Channel V still airs Midnight Blue. Goldstein noted, "The courts have ruled that obscene is illegal but indecent is permitted. That's why I'm home free. No one knows the difference. One man's obscenity is another man's indecency. One man's perversion is another man's religion."(note 116)
One of the steps needed to reach a compromise lies in the area of disagreement raised by Al Goldsteinthe difficulty of defining obscenity and indecency, and the role of the FCC in regulating programs that fall within either category.
II. Obscenity and Indecency on Cable - Regulating the Great
Unknown
The FCC has had difficulty placing cable television within a
regulatory category. Cable incorporates aspects of the broadcast
medium, but also contains unique attributes that demand different
standards. This hybrid structure has led to confusion between
state statutes attempting to define who has control over content
regulation and courts trying to assimilate these regulations with
existing precedent.
A. Obscenity and Indecency Regulation under the Miller and
Pacifica Holdings
The Supreme Court first dealt with delineating material
protected under the First Amendment in Roth v. United
States.(note 117) In
Roth, the Court upheld a federal statute that punished the
mailing of materials that were "obscene, lewd, lascivious, or
filthy."(note 118) The Court
held that ideas even having the slightest "redeeming social
importance" are protected under the First Amendment, but rejected
obscenity that is utterly without social importance.(note 119)
Nine years later, the Supreme Court in Memoirs v. Massachusetts altered the definition of obscenity under Roth, requiring that to prove obscenity, the prosecution must affirmatively establish that the material is utterly without value.(note 120) This forced the prosecution to prove a negative, which became "a burden virtually impossible to discharge under our criminal standards of proof."(note 121)
Miller v. California marked an attempt by the Court to further define obscenity, with the Court acknowledging the danger of regulating "any form of expression."(note 122) The case involved the arrest of an adult book salesman who was charged with violating a California statute for knowingly distributing obscene matter.(note 123) In a 5-4 decision written by Chief Justice Warren Burger, the Court confined the scope of obscenity to matter which depicted or described sexual conduct, to be defined by the applicable state statute.(note 124) The Court created a tripartite test for defining obscenity.(note 125) The test for the trier of fact is:
(a) whether the average person under "community standards" would find that the work, taken as a whole, appeals to a prurient interest; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by state law; and, (c) whether the work, taken as a whole lacks serious literary, artistic, or scientific value.(note 126)
Burger noted that while "the sexual revolution" had helped in removing some of the "prudery" in society, the Court saw no need to permit "hard core" material.(note 127) The Court warned states to use caution in not going beyond the test when enacting their obscenity statutes.(note 128) The material to be judged was to be very fact specific and examined from the standards of an average person, not a "particularly susceptible or sensitive person."(note 129) For material that was questionable, the Court noted, "[W]e must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide."(note 130)
In his dissent, Justice William Douglas noted the past difficulty the Court had in placing limits on regulating obscenity, an area that was vague and uncertain, with a scope that would vary among communities. He worried about the government becoming involved in an area of extreme emotion, crossing the fragile line of regulating expression into censorship. Regulation of expression should not, in Justice Douglas' eyes, be applied when the definition of obscenity too often became a rule of "I know it when I see it."(note 131)
Building on these allowances and limitations, states began to implement obscenity statutes. Questions began to arise, however, about regulating objectionable material that fell short of the obscenity standard. The Court returned to the area of controversial expression within the specific media of broadcast radio and television in FCC v. Pacifica Foundation.(note 132) A New York radio station broadcast in the daytime comedian George Carlin's "Filthy Words" monologue, a list of the seven words that "you couldn't say on the public, ah, airwaves, uhm, the ones you definitely wouldn't say, ever."(note 133) A man whose son heard the broadcast filed a complaint against the station, which prompted the FCC to issue an opinion that set a regulatory standard for the growing number of complaints about indecent speech on the airwaves.(note 134) The FCC had found that broadcast speech was different from other forms of expression because children had easy, unsupervised access to broadcasts, broadcasts invaded the privacy of a person's home without warning, and a scarcity of the broadcast spectrum existed as compared to the print medium.(note 135) Calling Carlin's speech "patently offensive" but not obscene, the FCC allowed channeling of the content by time, place, and frequency.(note 136)
The FCC's authority to regulate indecent broadcasting was upheld.(note 137) The Court defined indecency within the context of protecting children, as anything patently offensive within community broadcast standards that describes sexual or excretory activities and organs, broadcast at times of the day when there is a reasonable risk children may be in the audience.(note 138) The Court agreed with the FCC that because of the uniqueness of the broadcast medium, its pervasiveness in American homes, and its accessibility to children, regulation of indecency was constitutionally permissible.(note 139)
As it had done in Miller, the Court in Pacifica stressed the narrowness of its holding by requiring regulation to be very context specific.(note 140) In order to avoid infringement on a broadcaster's First Amendment rights, the FCC was to weigh such factors as time of day, expected composition of audience, and mode of broadcast.(note 141) Factual context is important because indecency "may be merely a right thing in the wrong place - like a pig in the parlor instead of the barnyard."(note 142)
B. Regulation of Content on Cable Television
Cable television presented a new problem for the FCC and
state governments. While cable television incorporates aspects of
broadcast television, cable operators transmit signals over wire
and require subscribers to pay a fee in order to receive
programming. Similar to persons involved with other visual media,
however, operators have expressed concern over how to regulate
objectionable cable content. One of the primary battles over
control took place with Utah's attempts to enact a statute
prohibiting and regulating obscene and indecent cable
programming.
The case HBO, Inc. v. Wilkinson involved the enactment of a statute by the Utah legislature in 1981 that imposed criminal sanctions on cable operators who knowingly distributed obscene and indecent programming on cable.(note 143) National and local cable television distributors and franchisees brought a class action suit challenging the constitutionality of the statute. The Utah District Court upheld the section of the statute prohibiting pornographic and obscene material by holding that the Miller test was a proper boundary for cable television.(note 144) The court drew the line at the Utah legislature's attempt to regulate indecency. Under the Utah statute, indecency was defined as portrayal of nudity and descriptions or depictions of "illicit sex or sexual immorality."(note 145) The court held that this definition was overly broad, as it would prohibit the portrayal of such material in art, literature, and scientific works.(note 146)
Merely because something offends one person does not mean it precludes another from finding some artistic or scientific value in the work. Judge Jenkins wrote:
I think the appealing to the worst in all of us is indecent. Those who do ought to be ashamed of themselves. But that does not mean that what they do is proscribed. We put up with it. What we do if we have occasion to be offended by something in a program is we get up and turn it off. We do something else. We read a book. We refuse to purchase the sponsor's product. And if we're concerned parents and we're not overjoyed by the violence and stupidity of The Dukes of Hazzard, we turn it off and direct our children to something else.(note 147)
The Utah District Court in 1983 addressed the applicability of the Pacifica holding to regulating cable content.(note 148) The court struck down a city ordinance enacted in Roy City that banned cable programming that fell under a municipally defined version of indecency.(note 149) The court held that Roy City could not rely on Pacifica because of the inherent differences between cable and broadcast television.(note 150) Differences include the requirement of subscribing to cable, which the court likened to a contractual agreement, the greater choices of channel selection on cable, and the difference between television broadcast waves as public property and the private nature of cable wires.(note 151) A person could choose not to subscribe to cable, but could not cancel broadcast television. Cable content should only be limited under the tripartite test of Miller, as it provided a degree of flexibility at the community level for all forms of publicly available information.(note 152) Rather than let the government interfere in an area that is protected by the First Amendment, the choice of regulating indecent or objectionable material rests with the individual, "a moral function for the parent and the family."(note 153)
Utah's last look at indecent cable programming arose in Community Television of Utah, Inc. v. Wilkinson, where the district court again asserted that only the Miller standard could apply to cable content regulation.(note 154) In striking down the regulation which would have made the broadcasting of indecent programming a criminal nuisance, the district court again stressed the difference between broadcasting and cable. Pacifica cannot apply to cable regulation because at best it "stands for the proposition that a federal regulatory agency can monitor consumer complaints directed at broadcasters who operate in the public domain."(note 155) Cable subscribers simply have more choices when dealing with programming they may find offensive: Subscribers may cancel their subscriptions to cable television or cancel certain channels through scrambling or lockboxes.(note 156) Limiting questionable programming due to fears of possible exposure to child viewers would unfairly restrict the rights of those consenting adults who subscribe to watch those programs.(note 157)
The Court of Appeals for the Eleventh Circuit supported this distinction in Cruz v. Ferre, holding that a Miami cable regulation statute exceeded the Miller test.(note 158) The proposed Miami statute ignored the rights of the majority viewing audience as subscribers. The statute also did not provide the Miller protections afforded to material with some social, artistic, and political value, which is necessary so that only the truly offensive material is prohibited.(note 159) The court suggested that Pacifica limitations were too excessive because cable operators would have more control over certain channels to restrict programming to certain times and days, and could warn viewers well ahead of time of potentially offensive programs with monthly programming guides. Applying Pacifica to cable would be an onerous burden for cable operators and viewers; Cruz relied on greater parental manageability and the choice of subscribing to certain programming instead of allowing further content regulation.(note 160) Re-evaluating Justice Sutherland's vivid analogy in Euclid, the Eleventh Circuit set forth the difference between cable and broadcast television, stating "that if an individual voluntarily opens his door and allows a pig into his parlor, he is in less of a position to squeal."(note 161)
Throughout these cases, and including the initial Alliance decision, court precedent has established that government cannot enact a statute for control of cable content that exceeds Miller. The 1992 Act provisions attempt to disguise government regulation through indirect control of the cable operator. Like government, an operator cannot prohibit sexually explicit conduct, or material soliciting unlawful conduct, without concern for its level of prurient interest or social, artistic, and political value. Under the FCC's proposed rules, an operator could ban an access show that explains the use of condoms for the sake of AIDS awareness. If the program involves a sexually explicit topic, an operator would not need to examine the possible social and artistic value of such a message. A complete ban of indecency is not the least restrictive alternative in balancing the needs of free expression on public access and the protection of children from objectionable material.
While the Alliance decision is pending a rehearing en banc, a recent California district court case provides a compelling argument as to how the District of Columbia Circuit Court should ultimately decide.(note 162) The California court enjoined Viacom Cable in San Francisco from attempting to segregate and utilize its editorial discretion in regulating indecent material.(note 163) Viacom had terminated episodes of the public access programs Wax Lips and Erotica SFshows that dealt with sex education, opinions, and "points of view not often heard on commercial tele-vision."(note 164) Cable operators relied on Section 10(c) of the 1992 Cable Act, which gave operators authority to prohibit indecent programming on public access channels.(note 165) The court acknowledged the Alliance holding and noted that in spite of its vacated judgment, the "underlying rationale for holding Sections 10(a) and (c) unconstitutional remains highly persuasive to the court."(note 166) While the protection of children was again recognized, the court wanted to avoid excessive prohibition because "the government can be assured that cable operators will institute bans on indecent material if only given the opportunity."(note 167)
Shows on public access may be controversialeither because of their message or contentbut those programs are the reason why public access exists. Whether one agrees or disagrees with the speaker on the electronic "soapbox," access provides a chance for the voices that go unheard in the mainstream to communicate their message. In order to address the concerns of viewers who are deeply offended by access programs and parents who want to protect children from objectionable material, steps other than prohibition can be taken that provide a less restrictive alternative.
III.Solutions to Access Regulation
Miller provides a fair test for determining obscenity
on both a national and local level. It is a test narrow enough
that diverse access users who address controversial topics may do
so without fear of prohibition. It also provides enough
flexibility to allow a community enough control to protect itself
from truly offensive and obscene material. Those involved in
public access have always been aware that they must abide by the
Miller guidelines. As T. Andrew Lewis, executive director
for the Alliance for Community Media said, "Public access has
always had to comply with existing obscenity laws. Public access
is not above the law."(note
168)
While it is undisputed that obscenity is a boundary applicable to access regulation, indecency remains an ambiguous area. The best way to avoid excessive prohibition in the area of indecent and objectionable material would be to restore operators' immunity from liability for program content and not allow prohibition of "indecent" programming. Reverting to the 1984 Cable Act provisions forbidding editorial control would help prevent the potential for excessive prohibition; operators would overregulate when threatened with criminal liability. An operator would still be expected to prohibit any program that clearly violated its state obscenity statute.(note 169) Criminal sanctions for obscenity would exist for the party who should have the greatest responsibility for the program's contentan access program's creator. The user would face liability for creating a program with obscene material and giving it to an operator without proper notification.(note 170)
The Miller test is by no means perfect, but it has consistently been held by the courts to be the best standard to balance competing interests. In cases of true controversy, the decision to prohibit will rest in the people of the community, instead of one operator under the looming shadow of the FCC.
A. Regulating Indecency - Creating Dual Channels
One suggestion for balancing the needs of expression and
protection of indecent access programming is found in the 1992
Cable Act provisions for leased access programming.(note 171) This idea offers the possibility of
creating two public access channelsone for the programs
considered "safe" and the other for indecent programming.(note 172) The controversial
channel would begin as a blocked or scrambled channel, and could
only be available upon subscriber request.(note 173) Separation would help provide
protection for viewers and further notice concerning channel
content. Economics and municipal attitudes toward public access,
however, would make this solution virtually impossible. As noted,
users of just one access channel have plenty of trouble receiving
enough funds for production and daily operations. Most systems
also have difficulty receiving enough programming for their
access channel. Two channels would only dilute the funds and
increase difficulties already faced by those involved in
access.
The Court of Appeals for the District of Columbia Circuit in Alliance remanded the segregation provisions for indecent programs on leased access promulgated by the FCC.(note 174) Leased access are channels offered for commercial use by any entity not affiliated with the operator.(note 175) The court held that singling out one channel for regulation, while leaving other commercial channels which carry the same material untouched, was an unconstitutional content-based restriction and was not the least restrictive means for protecting children.(note 176) The FCC would have to prove that the access channel is so prevalent and severe that it demands unique protection for children in comparison to other channels in order to pass First Amendment scrutiny. So far they have been unable to put forth evidence that makes access content any more problematic than that aired on other cable channels.
B. Controlling Access Content Through Local Limitations
Another approach would require that access programs contain
at least 50 percent local production and that only people within
the cable area could use access facilities.(note 177) Such a rule would effectively end
the national access programs that are distributed by videotape to
local communities. These programs have been the greatest source
of controversy. Local limitations are not a viable alternative
for both theoretical and practical considerations. Many users are
not able to produce the funds necessary to create and produce
their shows and need to rely on national offices for programming.
Examples include a national animal rights group, a Vietnamese
cultural group, and even the Ku Klux Klan. Public access acts as
a soapbox for each community. A person within a community that
sponsors a program produced elsewhere should have the right to
have others in that specific community see and listen to that
viewpoint. Taking this "conduit" of communication away would
violate the purpose of public access.
C. Certifying a Program for Access as a Way to Anticipate
Indecent Programming
As previously noted, one of the powers an operator has over
the access channel is deciding when to schedule a program. If
operators know a program is offensive, they can schedule that
program later at night to protect young viewers. Section 10 of
the 1992 Cable Act authorized cable operators to require
programmers to inform the operators if the shows produced would
be indecent under Commission regulations.(note 178) The FCC proposed that the
information should come through a certification process for
programming, where an operator could be warned if any of the
access material fell under that which was proscribed under
Section 10(c).(note 179) While
the FCC wanted the certification process to help enforce program
prohibition, the certification process could also be an effective
way for an operator to decide when to broadcast a certain
program. The FCC notes that certification is a relatively easy
process and that many operators already use such a mechanism.(note 180)
Access users voiced concerns about the original proposal that certification would create an enormous amount of paperwork and might hinder programming. A simple form could be created, however, that could be filled out by the program promoter and satisfy the goals of informing the operator. If operators felt a program was obscene, they could then in good faith refuse to air the program. If a dispute existed, it would be one for the trier of fact under the Miller test, instead of a solely subjective decision for the cable operator. Certification could effectively serve as a deterrent for obscenity. Indecent programs would not be prohibited, but only aired at a later time that corresponds with the show's content matter.
This certification would apply to live call-in access shows as well, a growing area of access programming. As the FCC proposed, the producer of a live show could use reasonable efforts to ensure against obscenity and measure the possibility for indecency.(note 181) Users would then not be deterred from experimenting with call-in shows, strengthening the trend towards "interactive" television.
D. Disclaimers and Programming to Inform the Viewers of
Objectionable Access Material
Another tool that would help protect minors would be for
operators to publicize their programs in a scheduled format,
either through mailing guides to subscribers or through an
electronic "calendar" between programs. Public access operators
most likely would not have the benefit of knowing months ahead
what shows would be submitted for airing. Requiring seven day
advance notice from users, however, would not be unduly
burdensome and would still provide a reasonable amount of time to
make viewers aware of certain controversial programming. Compared
to the alternative under the 1992 Cable Actwhere liability can be
imposed for improper pre-screeningthe cost of such scheduling
seems a small price to pay. As one access user put it, under the
strict FCC content regulations an operator might "have to pay
someone $10 an hour to pre-screen all that stuff."(note 182)
With a scheduling guide an operator could also air a disclaimer before any access program, warning viewers of potential indecent or controversial subject matter. The only way operators would have knowledge about program content would be through what they learned in the certification process, further emphasizing the importance of certification.
Successfully increasing viewer knowledge, then, ultimately rests on the honesty of the access user and effective use of the certification process. While nothing can be guaranteed, removing the operator's "discretion" to prohibit indecent material would help both sides clarify what type of programming can be banned. A further safeguard might be to require access programmers to indemnify an operator for any liability incurred by the programmer's failure to follow certification guidelines (provided the operators have not already been granted immunity). Cable operators would then be able to effectively use their scheduling authority to protect minors from indecent and controversial programming, while still allowing users the chance to be freely heard on public access.
E. Lockboxes
One of the key differences between cable and broadcast
television is that cable subscribers have the means to block out
or scramble a certain channel in their homes without affecting
the availability of the channel to others. The most common type
of blocking device is the lockbox. The box uses a type of numeric
"key" to lock out a channel through the cable converter, which
simply deletes that channel from the subscribers available
system. The 1984 Cable Act promoted such a device as the least
restrictive means by which to block a leased access channel.(note 183) The Act also included an
"income neutral" provision so that the lockbox was not used as a
tool for financial discrimination.(note 184) The court in ACLU v. FCC held
that the lockbox provision was valid and ruled the FCC could not
exclude a certain set of channels from being subject to a
lock-out.(note 185)
Attempts to place control of content in the hands of the FCC and cable operators have led to constitutional and practical problems. Lockboxes provide a means for restoring the power of choice to the viewer. The problem is that operators are not required to advertise the availability of a lockbox to the subscriber. Therefore, lockboxes have not been adequately used in practice.(note 186) Cost provides another reason why lockboxes have not been widely used. The 1984 Cable Act stated that a subscriber needed to purchase or lease the box from the operator.(note 187) Perhaps in order to fully realize Congress's goal of cable being an "income-neutral" service, lockboxes should be provided free of charge by the operator. If this came into effect, however, the lockbox cost would be indirectly borne by subscribers through an increase in basic rates, thereby raising potential objections from those who do not want to pay the cost for scrambling devices.
The better result would be to increase viewer awareness about the availability of a lockbox. Since the cable regulations provide no guideline about proper rates for lockboxes, the FCC should become more involved in setting a type of flat fee across the board. If Congress intended public access to provide a voice for the people, provided that voice does not include obscenity, lockboxes allow each viewer a choice without infringing on the rights of the speaker.
Comedian George Carlin said after the Pacifica case: "On the radio there are two knobs. One turns it off; the other changes the station."(note 188) The court ultimately disagreed with Carlin's solution to "regulating" indecent broadcasting. His underlying logic, however, provides the easiest solution to concerns about access. With a lockbox, a parent can be sure that a child will not tune in to a program that may be offensive in that particular household, an option currently unavailable with broadcast media. The job of "censorship," then, can rest with the individual person or parent and not the government. The difficulty lies, however, in getting people to use their individual power. When Manhattan Cable offered and publicized free lockbox service for any of their 228,000 subscribers who wished to block Manhattan's Channel J (now Channel V), only nineteen homes replied.(note 189) Robin Byrd, who acknowledges her show is not for everyone, said, "If children watch [my program] it's because parents aren't doing their job."(note 190) Indifference should not be a factor in allowing stricter regulation of objectionable expression.
F. Aggressive Counter-Programming
Another way for viewers to effectively counter those shows
con-sidered controversial or indecent is to respond with a show
that attacks these viewpoints. Kansas City ACLU Director Dick
Kurtenbach notes, "The proper response to speech you don't like
is more speech."(note 191)
People who find a certain program offensive, although not legally
obscene, should solicit the franchising authority to allow them
to present their message either before or after the objectionable
program. TCI Cable of Westchester, New York, adopted this
strategy with success by placing a show from the American Jewish
Committee after an anti-Semitic program.(note 192) Because an operator has the
authority to decide when to air a program, this remedy avoids any
constitutional concern about content prohibition.
There would be benefits to a cable operator actively soliciting community members to respond on public access. Indecent and hate shows may actually help tie a community together. Administrative Director Robert Purvis of the National Institute Against Prejudice and Violence stresses that "public access is potentially far more valuable in improving intergroup relations than it is in harming them."(note 193) Responding to these racist shows in particular might help viewers realize the hatred and prejudice inherent in the disputed message, "as the televised reports of [CBS news reporter] Edward R. Murrow finally did in the 50's for the Communist-baiting Sen. Joseph McCarthy."(note 194) Martin Dyckman, a columnist in Florida, attempted to encourage people to use public access in his community to protest against anti-Semitic comments made on an access program, warning that "[s]ilence in the face of bigotry condones it."(note 195)
It would also be far more effective to create a vigorous debate over shows that may contain nudity and sexual content, but also have a social or artistic value. Getting on the "soapbox" to talk about these programs, rather than suppressing them, will only educate. This knowledge becomes even more important in society where problems like teenage pregnancy, AIDS, and racial tension exist.
Conclusion
Since its inception, public access has been the medium for
those whose message cannot be heard elsewhere. With the expansion
of cable television, Congress and the FCC have attempted to
assure that public access has a place in the channel spectrum.
The result has been struggles between operators, users, and
viewers over what content can be prohibited. This puts a strain
on user involvement and diminishes any positive operator
incentive towards the use of access. Because of the difficulty
the courts have had in defining a proper indecency standard for
cable television, access content should only be prohibited if it
violates the Miller standard of obscenity. Placing the
choice in the hands of the operator threatens to severely limit
the power of access, no matter how beneficial programs may be
behind possible rough edges.
As cable finds itself facing a future of almost unlimited channel capacity, the diversity found on the small "voice" of public access needs to be protected. The rules promulgated by the FCC under the 1992 Cable Act threaten the expression that is essential to access by placing the tool of censorship in a single person. The best way to preserve a channel that provides a voice for the people is to give the control over what to watch and what is received in the home to an individual viewer. Only then will the marketplace of ideas be able to succeed.
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