No. 95-124 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. No. 95-227 ALLIANCE FOR COMMUNITY MEDIA, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SUPPLEMENTAL BRIEF FOR THE FEDERAL RESPONDENTS This brief is submitted pursuant to Supreme Court Rule 25.5 to notify the Court of newly enacted leg- islation. On February 8, 1996, the President signed into law the Telecommunications Act of 1996, Pub. L. No. 104-104 (the 1996 Act). The three provisions (1) ---------------------------------------- Page Break ---------------------------------------- 2 of that statute noted herein are reprinted in the Appendix to this brief, 1. Section 504 of the 1996 Act provides that "[u]pon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video program- ming of each channel carrying such programming so that one not a subscriber does not receive it." App., infra, 1a. That provision generally enables subscrib- ers to ensure. that they will receive only those cable channels to which they subscribe and that they will not receive either the audio or video portions of any channel to which they do not subscribe. It applies to all cable channels, regardless of the content of the channel or any of the programming on that channel, In our view, it has no bearing on the legal issues ir this case. 2. Section 505 of the 1996 Act provides that a "multichannel video programming distributor"-a phrase that includes cable operators, see 47 U.S.C. 522(12) (Supp. V 1993)-must scramble or block "sexually explicit adult programming or other pro- gramming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming." App., infra, 2a. That requirement extends to both audio and video portions of such programming. Until the distributor can commence such scrambling or blocking, Section 505 requires the distributor not to provide such programming "during the hours of the day (as determined by the [Federal Communications] Commission) when a significant number of children are likely to view it." Ibid. Section 505 neither modifies nor amends any of the provisions of Section 10 of the 1992 Cable Act that petitioners challenge in this case. Section - 505, ---------------------------------------- Page Break ---------------------------------------- 3 however, has effects similar to Section 10(b) of the 1992 Cable Act in one respect. Section 10(b) provides that cable operators who permit the showing of indecent programming on commercial access chan- nels must segregate such programming on separate channels and block it unless and until the subscriber requests access to it. Section 505's blocking scheme extends a similar requirement to channels "primarily dedicated to sexually-oriented programming." It therefore may have relevance to petitioners' under- inclusiveness argument. See Alliance Br. 41-43; DAETC Br. 47-48. 3. Section 506 of the 1996 Act includes two pro- visions that amend sections of the Communications Act providing that cable operators shall exercise no editorial control over, respectively, PEG and leased access channels. a. Section 506(a) applies to PEG channels. Since 1984, the Communications Act has provided that "a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity." 47 U.S.C. 531(e). One of the provisions added in 1992 and challenged in this case, however, permits operators to exercise limited editorial control. Section 10(c) of the 1992 Cable Act provides that the FCC "shall promulgate * * * regulations * * * to enable a cable operator of a cable system to prohibit the use * * * of any [PEG channel] for any programming which contains obscene material, sexually explicit conduct, or ma- terial soliciting or promoting unlawful conduct." Pub. L. No. 102-385, 106 Stat. 1486 (47 U.S.C. 531 note (SUPP. V 1993)). See U.S. Br. 5-6 (discussing FCC's interpretation of that language). ---------------------------------------- Page Break ---------------------------------------- 4 Section 506(a) of the 1996 Act amends the earlier provision regarding cable operators' editorial control, 47 U.S.C. 531(e), to add the following language: "except a cable operator may refuse to transmit any public access . program or portion of a public ac- cess program which contains obscenity, indecency, or nudity." App., infra, 3a. Section 506(a) does not amend Section.10(c), and no provision that petitioners attack is altered by the new statute. I b. Section 506(b) makes virtually identical changes to the leased access provisions of the Communica- tions Act. Since 1984, the statute has provided that' "[a] cable operator shall not exercise any editorial control over any video programming [on a leased access channel], or in any other way consider the content of such programming," with a single ex- ception not relevant here. 47 U.S.C. 532(c)(2). One of the provisions challenged in this case, however, permits operators to exercise limited editorial con- trol. Section 10(a) of the 1992 Cable Act, codified at 47 U.S.C. 532(h) (Supp. V 1993), provides that "[t]his subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." Section 506(b) of the 1996 Act amends the earlier provision regarding cable operators' editorial control, 47 U.S.C. 532(c)(2), to provide that "a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity." App., infra, 3a. Section 506(b) does not amend Section 10(a), and no ---------------------------------------- Page Break ---------------------------------------- 5 provision that petitioners attack is altered by the new statute. c. Insofar as Section 506 merely conforms the previously unqualified language of 47 U.S.C. 531(e) and 532(c)(2) to recognize a cable operator's right to prohibit obscene or indecent access programming that had been the subject of Sections 10(a) and 10(C) of the 1992 Cable Act, Section 506 has no effect on the First Amendment rights of petitioners. If Section 506, however, is believed by petitioners or others to have some additional effect on their claimed First Amendment rights, their appropriate course would be to challenge Section 506 in an action before a three- judge court, pursuant to Section 561 of the 1996 Act. Respectfully submitted. DREW S. DAYS, III Solicitor General FEBRUARY 1996 ---------------------------------------- Page Break ---------------------------------------- APPENDIX the Communications Decency Act of 1996, the Telecommunications Act .04-104, provides in pertinent TITLE V-OBSCENITY AND VIOLENCE SEC. 504. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. Part IV of title VI (47 U.S.C. 531 et seq.) is amended by adding at the end the following "SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. "(a) SUBSCRIBER Request-Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it. "(b) DEFINITION-AS used in this section, the term `scramble' means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an understandable manner.". (1a) ---------------------------------------- Page Break ---------------------------------------- SEC. 505. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE PROGRAMMING (a) REQUIREMENT Part IV of title VI (47 U.S.C. 551 et seq.), as amended by this Act, is -further amended by adding at the end the following "SEC. 641. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE PROGRAMMING. "(a) Requirement In providing Sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it. "(b) IMPLEMENTATION Until a multichannel video programming distributor complies with the require- ment set forth in subsection (a), the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the Commission) when a significant number of children are likely to view it. "(c) DEFINITION AS used in this section, the term `scramble' means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an understandable manner.". ---------------------------------------- Page Break ---------------------------------------- 3a (b) EFFECTIVE DATE The amendment made by subsection (a) shall take effect 30 days after the date of enactment of this Act. SEC. 506. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS. (a) PUBLIC, EDUCATIONAL, AND GOVERNMENTAL CHANNELS Section 611(e) (47 U.S.C. 531(e)) is amended by inserting before the period the following: ", except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity". (b) CABLE CHANNELS FOR COMMERCIAL Use Section 612(c)(2) (47 U.S.C. 532(c)(2)) is amended by striking "an operator" and inserting "a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity and". **** * --------------------------------------- Page Break ---------------------------------------- No. 95-124 and 95-227 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ALLIANCE FOR COMMUNITY MEDIA, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SUPPLEMENTAL BRIEF FOR THE FEDERAL RESPONDENTS WILLIAM E. KENNARD FRANK W. HUNGER General Counsel Assistant Attorney General CHRISTOPHER J. WRIGHT BARBARA L. HERWIG Deputy General Counsel DANIEL M . CHRISTOPHER Counsel Federal Communications Commission Washington, D. C. 20530 DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General BARBARA L. HERWIG JACOB M. LEWIS Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED Section 10 of the Cable Television Consumer Pro- tection and Competition Act of 1992, Pub. L. No. 102- 385, 106 Stat. 1486, authorizes operators of cable television systems to prohibit indecent programming on channels set aside for lease by unaffiliated third parties ("leased access channels") as well as channels reserved for public, educational or governmental ("PEG") use. In addition, with respect to the leased access channels, if the cable operator chooses not to prohibit indecent programming on those channels, the operator must place such programming on a separate channel and block access to that channel until the cable subscriber requests access in writing. The questions presented are: 1. Whether a cable operator's decision to prohibit indecent programming from its leased access or PEG channels is "state action" attributable to the federal government. 2. Whether Section 10 or its implementing re- gulations violate the First Amendment in requiring cable operators who choose not to ban indecent pro- gramming on their leased access channels to segre- gate and block such programming, permitting access only upon a subscriber's written request. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statement . . . . 2 Argument . . . . 10 Conclusion . . . . 21 TABLE OF AUTHORITIES Cases: Action for Children's Television v. FCC: 852 F.2d 1332(D.C. Cir. 1988) . . . . 20 932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913(1992) . . . . 20 Altmann v. Television Signal Corp., 849 F. Supp. 1335(N.D. Cal. 1994) . . . . 10 Blum v. Yaretsky, 457 U. S. 991 (1982) . . . . 7, 11 Carlin Communications v. Mountain States Tel. & Tel. Co., 827 F.2d 1291(9th Cir.1987), cert. denied, 485 U. S. 1029(1988) . . . . 15, 16 City of Jamestown v. Beneda, 477 N.W.2d 830 (N.D. 1991) . . . . 16 Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788(1985) . . . . 15 Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992) . . . . . 17-18, 20 FCC v. Pacifica Found., 438 U. S. 726 (1978) . . . . 10, 20 Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) . . . . 15 Goldstein v. Manhattan Cable Television, Inc., No. 90 CIV 4750 (S.D.N.Y. Sept.20, 1995) . . . . 10, 11 Information Providers'Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991) . . . . 16, 17, 18, 20 Jackson v. Metroplitan Edison Co., 419 U.S. 345 (1974) . . . . 14, 16 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Railway Employees' Dep't v. Hanson, 351 U.S. 225 (1956) . . . . 13 Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989) . . . . 14, 16, 20 San Francisco Arts & Athletics, InC. v. United States Olympic Comm., 483 U.S. 522 (1987) . . . . 11 Constitution, statutes and regulation: U.S. Const. Amend. I . . . . 5, 8, 12, 15, 16 Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 . . . . 2 47 U.S.C. 531 (Supp. v 1993) . . . . 2, 4, 12 47 U.S.C. 531(e) . . . . 2 47 U.S.C. 532(b) . . . . 2 47U.S.C.532(c)(2). . . . 2 47 U.S.C. 532(h) (Supp. v 1993) . . . . 3, 12, 20 47 U.S.C. 532(j) (Supp. v 1993) . . . . 4 47 U.S.C. 532(j)(l)(B) (Supp. V 1993) . . . . 18 47 U.S.C. 558 . . . . 2 47 U.S.C. 558 (Supp. v 1993) . . . . 5, 14 47 C.F.R. 76.701(g) . . . . 5, 20 Cable Television Consumer Protection and Compe- tition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 . . . . 2 10,106 Stat. 1486 . . . . 6, 9, 19 10(a), 106 Stat.1486- . . . . 3, 5, 6, 10, 11, 12, 13 10(b), 106 Stat.1486 . . . . 4, 6, 7, 8, 10, 16, 17, 18, 19, 20 10(c), 106 Stat 1486 . . . . 3-4, 6, 10, 12, 13, 14 10(d), 106 Stat. 1486 . . . . 5, 14 Miscellaneous: 138 Cong. Rec. (daily ed. Jan. 30, 1992): p. S646 . . . . 3, 4, 5, 18 p. S648 . . . . 3 p. S649 . . . . 3 p. S650 . . . . 4 p. 652 . . . . 5 ---------------------------------------- Page Break ---------------------------------------- v Miscellaneous-Continued: Page First Report and Order, 8 FCC Rcd 998 (1993) . . . . 5, 17, 19 Second Report and Order. 8 FCC Rcd 2638 (1993) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-124 DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. No. 95-227 ALLIANCE FOR COMMUNITY MEDIA, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION, ET AL. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals in banc (Pet. App.1 2a-88a) is reported at 56 F.3d 105. The opinion of the panel (Pet. App. 90a-125a) is reported at 10 F.3d ___________________(footnotes) 1 References to "Pet. App." are to the Appendix to the Peti- tion in No. 95-124. (1) ---------------------------------------- Page Break ---------------------------------------- 2 812. The Federal Communications Commission's First Report and Order (Pet. App. 128a-177a) is re- ported at 8 FCC Rcd 998, and its Second Report and Order (Pet. App. 178a-202a) is reported at 8 FCC Rcd 2638. JURISDICTION The judgment of the court of appeals in banc was entered on June 6, 1995. Petitions for a writ of certio- rari were filed on July 21, 1995, and August 9, 1995, respectively. The jurisdiction of this Court is in- voked under 28 U.S.C. 1254(1). STATEMENT' 1. Federal law requires operators of cable televi- sion systems with more than 36 channels to set aside a certain number of channels for commercial lease by unaffiliated third parties, see 47 U.S.C. 532(b), and empowers local franchise authorities to have opera- tors reserve certain channels for "public, educational, or governmental [PEG] use." 47 U.S.C. 531 (Supp. V 1993). When Congress first enacted these provisions in the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (the 1984 Act), it forbade cable operators from exercising editorial control over their PEG and leased access channels, see 47 U.S.C. 531(e), 532(c)(2) (1988), and `provided that operators "shall not incur any * * * liability" under federal, state, and local obscenity laws for programs carried on such channels. 47 U.S.C. 558 (1988). Congress revisited the question of indecent- and obscene cable access programming as part of the Cable Television Consumer Protection arid Compe- tition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 ---------------------------------------- Page Break ---------------------------------------- 3 (the 1992 Act). "The problem," Congress was in- formed, "is that cable companies are required to carry, on leased access channels, any and every program that comes along, " including programs that include a wide variety of highly indecent material. 138 Cong. Rec. S646 (daily ed. Jan. 30, 1992) (statement of Sen. Helms).' Members of Congress were aware that "early and sustained exposure" to such material can cause "significant physical, psychological, and social damage to a child." Id. at S649 (statement of Sen. Coats). To protect against the harm to children and to return a measure of editorial control to cable opera- tors, Congress decided to allow operators to prohibit indecent programming on leased access channels. Thus, Section 10(a) of the 1992 Act permits cable operators to enforce "a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." 47 U.S.C. 532(h) (Supp. V 1993). Congress also found that the problem of indecent programming existed on PEG as well as leased access ___________________(footnotes) 2 See 138 Cong. Rec. S646 (daily ed. Jan. 30, 1992) (describing leased access program in New York that "depicts men and women stripping completely nude," another featuring people performing oral sex, and a channel with advertisements promoting "incest, bestiality, [and] even rape."). See also id. at S648 {statement of Sen. Thurmond) (noting leased access channel with "numerous sex shows and X-rated previews of hard-core homosexual films" as well as channels with advertise- ments for phone lines letting listeners eavesdrop on acts of incest). ---------------------------------------- Page Break ---------------------------------------- 4 channels.3 Congress accordingly adopted Section 10(c) of the 1992 Act, which requires the Commission to enable cable operators to prohibit the use of PEG channels "for any programming which contains ob- scene material, sexually explicit conduct or material soliciting or promoting unlawful conduct." See note following 47 U.S.C. 531 (Supp. V 1993). In this way, Congress intended to permit cable operators "to police their own systems, which they cannot do now." 138 Cong. Rec. S650 (daily ed. Jan. 30, 1992) (statement of Sen. Wirth). Congress also required the Federal Communica- tions Commission to promulgate regulations to limit the access of children to the indecent programming that continued to be carried on leased access channels. Section 10(b) of the 1992 Act requires operators who permit the carriage of indecent programming on leased access channels to place the programming on a separate channel and to block a subscriber's access to that channel until the subscriber requests in writing that the channel be unblocked. See 47 U.S.C. 532(j) (Supp. V 1993). AS Congress was informed, the segregation and blocking requirement was "precisely the same method" that Congress used to block access to indecent telephone messages (so-called "dial-a-porn"). 138 Cong. Rec. ___________________(footnotes) 3 See 138 Cong. Rec. S649 (daily ed. Jan. 30, 1992) (statement of Sen. Fowler) (observing that such channels were being used "to basically solicit prostitution though easily discernible shams such as escort services, fantasy parties, where live participants, through two-way conversation through the telephone, are soliciting illegal activities"); see also id. at S650 (statement of Sen. Wirth) (agreeing that public access "has * * * been abused"), ---------------------------------------- Page Break ---------------------------------------- 5 S646 (daily ed. Jan. 30, 1992) (statement of Sen. Helms). Congress enacted no similar segregation and blocking requirement for PEG channels, however. Section 10(d) of the 1992 Act eliminates the immu- nity of cable operators for obscene access program- ming, by making clear that operators would be free from liability for programming on leased access and PEG channels "unless the program involves obscene material." 47 U.S.C. 558 (Supp. V 1993). As the provision's sponsor explained, "it was never the intent of the Congress * * * to provide a safe harbor for obscenity." 38 Cong. Rec. S652 (daily ed. Jan. 30, 1992) (statement of Sen. Helms). 2. The Commission adopted final regulations implementing the provisions of the statute governing leased access channels in its First Report and Order, 8 FCC Red 998 (1993) (Pet. App. 128a). The Commission made clear that, consistent with the de- finition contained in Section 10(a) of the statute (itself based on the Commission's longstanding for- mulation), indecent programming subject to blocking consists of "programming that describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary com- munity standards for the cable medium." 47 C.F.R. 76.701(g); Pet. App. 148a-149a. The Commission issued regulations concerning the carriage of programming on PEG channels in its Second Report and Order. Pet. App. 178a-202a. The agency again rejected the contention that by auth- orizing private cable operators to choose to prohibit certain programming on PEG channels, the statute and the implementing regulations violated the First Amendment, Pet. App. 181a-183a. The Commission ---------------------------------------- Page Break ---------------------------------------- 6 also construed the statute's coverage of programming containing "sexually explicit conduct" to mean that the programming must be "indecent." Pet. App. 186a- 187a. The Commission found such a construction to be reasonable, "given the purpose underlying section 10 as a whole and its legislative history, namely, reducing the exposure of viewers, especial] y children, to `indecent' programming on cable access- channels." Pet. App. 187a. 3. Petitioners, a number of cable programmers and organizations of listeners and viewers, filed petitions for review of the Commission's orders in the court of appeals, contending that Section 10 and its imple- menting regulations violated their rights to free speech under the First Amendment. a. After staying the regulations pending review, a panel of the court-invalidated Sections 10(a) and 10(c). Pet. App. 111a. The panel held that, because those provisions permitted cable operators to ban indecent leased access and PEG programming, the operators' decisions to do so should be attributed to the federal government as "state action." Pet. App. 108a. The panel remanded the issue of the constitutionality of Section 10(b)'s segregation and blocking scheme for leased access channels to the Commission for further consideration in light of its invalidation of Sections 10(a) and 10(c). Pet. App. 122a-125a. b. The appeals court subsequently vacated the panel opinion, heard the case in banc, and issued a judgment upholding Section 10 and the regulations. Pet. App. 2a-89a. The full court held that the decision by cable operators to prohibit indecent leased access or PEG programming permitted by Section 10 is not "state ---------------------------------------- Page Break ---------------------------------------- 7 action" to which the First Amendment applies. Pet. App. 31a. The court emphasized that the statute does not "command" cable operators to prohibit indecent programming. Pet. App. 12a. Instead, the court explained, the statute "gives them a choice" (Pet. App. 18a); operators "may carry indecent programs on their access channels, or they may not." Pet. App. 12a. As the court explained, that is the same choice that cable operators have with respect to all other cable channels they carry. Pet. App. 14a. The court also concluded that the statute does not provide such "significant encouragement" to the deci- sion by any cable operator to ban indecent access pro- gramming that "state action must be found." Pet. App. 19a. As the court recognized, " `[m]ere approval of or acquiescence in the initiatives of a private party' * * * cannot `justify holding the State responsible for those initiatives.'" Pet. App. 22a (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-1005 (1982)). The court also found that it would be inappropriate to assume that the costs associated with Section 10(b)'s segregation and blocking scheme would cause cable operators to ban indecency from their access channels. Pet. App. 23a-25a. As the court explained, "[n]othing in section 10 specifies that [such costs] ** * must be borne by cable operators," and the FCC "has determined to take up this and related issues in its cable rate regulation proceeding upon the final resolution of this litigation." Pet. App. 24a. The court stated that "[i]n deciding this facial challenge to the regulations we are unwilling to speculate about the outcome of those proceedings." Pet. App. 25a. ---------------------------------------- Page Break ---------------------------------------- 8 In addition, the court determined, any effect that Section 10(d)'s removal of immunity for the carriage of obscene programming would have cm an operator's programming decision would not support attribution of the operator's decision to ban indecent program- ming to the government. Pet. App. 26a-27a. The court observed that because obscene cable program- ming is constitutionally unprotected, Congress has the power to ban such programming altogether. The court noted that "Section 10(d) thus imposes on cable operators the same liability for obscene access programming that operators long have had with respect to other programming on channels they control." Pet. App. 27a. If "a cable operator takes this into account in deciding which programs to carry-on any channel," that fact could not "convert its refusal to carry indecent programming into state action." The court determined, moreover, that leased access and PEG channels are not "public forums" for First Amendment purposes, since they are neither owned by the government, Pet. App. 29a, nor "so dedicated to the public that the First Amendment confers a right on the users to be free from any control by the owner of the cable system." Pet. App. 31a. The court found that the 1992 Act's leased access and PEG obligations are akin to common carrier requirements, which have never been thought to transform a private entity's decisions into those of the government. Ibid. The court held that Section 10(b)'s segregation and blocking scheme constitutes state action, but is the least restrictive "means of accommodating "two com- peting interests: the interest in limiting children's exposure to indecency and the interest of adults in ---------------------------------------- Page Break ---------------------------------------- 9 having access to such material." Pet. App. 33a. The voluntary use of lockboxes would not be an effective alternative, the court determined, since it would present cable viewers with "two, equally unacceptable options." Pet. App. 35a. Because such channels are controlled by no single editor, viewers either would have to "continually activate and deactivate" the lockboxes, "inevitably risking a slip up or a lapse that would expose their children to indecency," or they would have to "install lockboxes permanently, there- by giving up leased access programming altogether." Ibid. The court rejected petitioners' arguments that Section 10 unconstitutionally discriminates against leased access programming, because it does not impose a similar segregation and blocking scheme on PEG or commercial cable channels. The court explained that leased access channels are unlike commercial channels, not only because no single editor is responsible for what is shown on leased access channels, but because indecency on other channels is generally shown only upon request and for a premium payment. Pet. App. 40a-41a. The court acknowledged that PEG channels "are comparable" to leased access channels in this respect, but found that PEG channels "did not pose dangers on the order of magnitude of those identified on leased access channels." Pet. App. 40a. Finally, the court concluded, the statute's inde- cency standard is not impermissible vague, noting that the standard tracks the Commission's generic definition of indecency, which this Court had re- ---------------------------------------- Page Break ---------------------------------------- 10 viewed and upheld in FCC v. Pacifica Found., 438 U.S. 726 (1978). Pet. App. 42a-43a.4 ARGUMENT The decision below is the first by any court of appeals to address the constitutionality of Section 10 and its implementing regulations. The decision does not conflict with that of any other court of appeals and correctly disposes of the issues presented by this case.5 Further review is therefore not warranted. __________________(footnotes) 4 Only Judges Wald and Tatel dissented in full from the in bane decision. Pet. App. 44a-76a. Judge Edwards found that Sections 10(a) and 10(b), read in tandem, impose an uncon- stitutional burden on speech, but sided with the majority as to Section 10(c), concluding that the provision "merely returns some editorial control to cable operators," which is "not the least bit objectionable." Pet. App. 78a. Judge Rogers agreed with the dissenters only with regard to Section 10(b); she would have, after severing that provision, upheld the rest of the statue. Pet. App. 88a. 5 Petitioners in Denver Area Educational Telecommuni- cations Consortium, et al. (collectively, DAETC), complain that the decision below conflicts with the decision of the district court in Altmann v. Televisions Signal Corp.. 849 F. Supp. 1335 (N.D. Cal. 1994), which granted a partial preliminary injunction against enforcement of Sections 10(a) and 10(c) of the 1992 Act (but upheld Section 10(b) as constitutional). The conflict between a decision of a court of appeals and that of a district court does not warrant this Court's review. In any event, the Altmann court, which has so far examined Section 10's constitu- tionality only for purposes of preliminary relief, did not have the benefit of the in banc decision in this case and remains free to reexamine its conclusion before it renders final judgment. We note also that the district court in Goldstein v. Manhattan Cable Television,- Inc., No. 90 CIV 4750 (S.D.N.Y. Sept. 20, 1995), granted a preliminary injunction to a leased access programmer to prohibit a cable operator from segregating the ---------------------------------------- Page Break ---------------------------------------- 11 1. A governmental entity " normally can be held responsible for a private decision only when it has exercised coercive power or has provided such signi- ficant encouragement, either overt or covert, that the choice must in law be deemed that of the [govern- ment].'" San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522, 546 (1987) (quoting Blum, 457 U.S. at 1004). "Mere approval of or acquiescence in the initiatives of a private party is not sufficient." Blum, 457 U.S. at 1004. Accord San Francisco Arts & Athletics, 483 U.S. at 547. In this case, nothing in Section 10 compels cable operators to prohibit indecent programming on leased access or PEG channels, or so significantly encourages opera- tors to do so "that the choice in law must be deemed that of the [government]." By its terms, Section 10(a) of the 1992 Act "per- mit[s]" cable operators to enforce a written and published policy of prohibiting indecent programming ___________________(footnotes) programmer's indecent programming and making it available only to subscribers who request access to it. Although the district court indicated-without any elaboration-its general agreement with Judge Wald's dissenting opinion in this case (slip op. 7), the court also noted that it believed that the case before it was stronger in a number of respects than this case. See slip op. 7-10. In addition, a stipulation entered into by the cable operator provided an independent basis for the preliminary injunction in Goldstein that has nothing to do with this case. See slip op. 10-16. In any event, any conflict between the district court's preliminary injunction decision in Goldstein and the court of appeals' final judgment in this case would not warrant review by this Court. Indeed, the pendency of Goldstein and Altmann in the district courts in the Second and Ninth Circuits suggests that further review in this Court of the issues common to all three cases can await the development, if any, of a conflict among the circuits on those issues. ---------------------------------------- Page Break ---------------------------------------- 12 on leased access channels. 47 U.S.C. 532(h) (Supp. V 1993). Section l0(c) of the 1992 Act similarly provides that the Commission should "enable" cable operators to prohibit the use of PEG channels for indecent programming. See note following 47 U.S.C. 531 (Supp. V 1993)." In short, as the court of appeals recognized, "sections 10(a) and 10(c) do not command. Cable operators may carry indecent programs on their access channels, or they may not." Pet. App. 12a. Accord Pet. App. 18a ("Rather than coerce cable operators, section 10 gives them a choice."). Those provisions simply restore to cable operators the right-which they enjoy with respect to all other cable channels that they carry-to employ their equipment and franchises to carry or not carry indecent programming, in their discretion. Petitioners contend that state action "is. inherent in the creation of the * * * laws and regulations that are the subject of this litigation." Alliance Pet. 15. See DAETC Pet. 19. We do not dispute that Sections 10(a) and 10(c) are federal statutes, enacted and imple- mented as the result of governmental action. But the mere enactment of those provisions does not limit the speech of any individual or entity. Insofar as cable operators continue to carry indecent access pro- gramming, Sections 10(a). and 10(c) would have no effect on free speech rights. The only possible First Amendment effect of those provisions `would occur if and when cable operators decide not to carry indecent access programming. The question presented, there- fore, is whether such decisions by cable operators would be properly attributable to the government. Since nothing in Section 10(a) or 10(c) interferes with the cable operators' discretion in deciding whether to ---------------------------------------- Page Break ---------------------------------------- 13 carry indecent access programming, those decisions -if they are made-could not be said to be the result of state action. To be sure, without Sections 10(a) and 10(c), cable operators would not have had the authority to prohibit indecent access programming. But such authorization was necessary only because federal law had in 1984 generally removed cable operators' edi- torial control over access channels. The 1992 Act simply seeks to restore the ability of cable operators to control the carriage of indecent programming on their cable systems, a power that, prior to access requirements, could not have been thought to have given rise to state action. As the court of appeals observed, "[t]o suppose that whenever Congress restores to cable operators editorial discretion an earlier statute had removed, the operators' exercise of this discretion becomes state action subject to the First Amendment, not only would disable the legislature from correcting what it perceives as mistakes in legislation, but also would deter it from experimenting with new methods of regulating." Pet. App. 15a. Petitioners also maintain that state action is pre- sent because Sections 10(a) and 10(c) preempt con- trary state law, relying on Railway Employes' Dep`t v. Hanson, 351 U.S. 225 (1956). DAETC Pet. 19-20, Alliance Pet. 17-19. Unlike Hanson, however, federal law does not provide the "source" of the cable opera- tor's "power and authority" to control indecent pro- gramming over access channels. 351 U.S. at 232. Instead, an operator's power to control the pro- gramming carried over its cable system stems from its ownership of the system, Sections 10(a) and 10(c) ---------------------------------------- Page Break ---------------------------------------- 14 simply remove an obstacle to the operator's exercise of its ownership rights that was put into place, as a matter of federal law, by the 1982 Act. Moreover, since Hanson, this Court has made clear that the actions of private parties cannot be attrib- uted to the government unless there is a "sufficiently close nexus" between the private party's actions and those of the government such that the actions of the private party can fairly be attributable to the govern- ment. Jackson v. Metropolitan Edison CO., 419 U.S. 345,351 (1974). That federal law permits a party to take an action free from state interference does not make that action attributable to the government; on the contrary, it supports the inference that the action should not be attributed to the government at ail. Petitioners Alliance for Community Media, et al. (collectively Alliance) contend that the 1992 Act encourages cable operators to prohibit indecent pro- gramming on their leased access and PEG channels, focusing on Section 10(d)'s removal of operators' im- munity for the carriage of access programming that "involves obscene materials." Alliance Pet. 20-21. See 47 U.S.C. .558 (Supp. V 1993). It is well settled, however, that- the government may prohibit obscene speech, since such speech falls outside the protections of the First Amendment. See, e.g., Sable Communications, Inc. v. FCC, 492 US. 115, 124 (1989). The fact that cable operators are now subject to such prohibitions with respect to their access channels-as they previously were with respect. to all other channels they operate-does not provide a special incentive to operators to ban indecent programming that is not obscene. In any event, "[s]ome self-censorship is an inevitable result of all ---------------------------------------- Page Break ---------------------------------------- 15 obscenity laws." Carlin Communications v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1297 n.6 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988). See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 60 (1989). And private parties make private decisions against a backdrop of criminal laws and obscenity statutes every day. As the court of appeals recognized (Pet. App. 27a), the fact that they take such laws into account does not transform their decisions into those of the state. Carlin, 827 F.2d at 1297 n.6. Finally, petitioners contend that the First Amend- ment applies to any decision by a cable operator to refuse to carry indecent access programming, because access channels are "public forums." Alliance Pet. 23-25; see DAETC Pet. 20-21 n.11. As the court of appeals correctly discerned, the public forum doctrine derives from efforts to address the "issue of when the First Amendment gives an individual or group the right to engage in expressive activity on government property." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 815 (1985) (Blackmun, J., dissenting) (emphasis added). The access channels in this case are plainly not government property. As the court of appeals explained, "[t]he [access] channels belong to private cable operators; are man- aged by them as part of their systems; and are among the products for which operators collect a fee from their subscribers." Pet. App. 29a. To be sure, there are constraints (removed only in part in 1992) on the control a cable operator may exercise over access channels on its system. Those constraints, however, at most impose common carrier obligations on ---------------------------------------- Page Break ---------------------------------------- 16 operators, as the Commission and the court of appeals found. Pet. App. 31a; Pet. App. 139a-140a. And just as a heavily regulated utility may take action without having its decision attributed to the state, Jackson v. Metropolitan Edison Co., 419 US. 345,358-359 (1974), so too a common carrier of information does not act as the government when it distinguishes between speech on the basis of its content. See, e.g., Sable Communi- cations v. FCC,- 492 U.S. at 133 (Scalia, J., concurring) ("We do not hold that the Constitution requires public utilities to carry [indecent speech]."> Information Providers' Coalition v. FCC, 928 F.2d 866 877 (9th Cir. 1991) ("a telephone carrier may * * * ban `adult entertainment' from its network"]; Carlin Commu- nications, 827 F.2d at 1297 (carrier generally under no constitutional restraints in its policy of banning all "adult" programming from its network).6 2. The court of appeals also correctly concluded that Section 10(b)'s segregation and blocking scheme is the least restrictive means of advancing the gov- ernment's compelling interest in protecting children from indecent programming. Pet. App. 36a. a. Petitioners assert that cable "lockboxes''-de- vices that parents can use to Mock out the receipt of cable programming on selected channels (including, but not limited to, access channels) for particular ___________________(footnotes) 6 Petitioner Alliance contends that the_appeals court's failure to treat private property under the public forum doctrine con- flicts with City of Jamestown v. Beneda, 477 N.W.2d 830 (N.D. 1991), which reversed trespass convictions in a North Dakota shopping mail on First Amendment grounds. In finding the Constitution applicable, however, the Beneda court expressly relied upon the fact that the mall in question was publicly owned. 477 N.W.2d at 835. ---------------------------------------- Page Break ---------------------------------------- 17 periods of time-are a less restrictive means of providing the same protection. DAETC Pet. 23-24; Alliance Pet. 26-27. As the court of appeals recog- nized, however, leased access programming "may come from a wide variety of independent sources, with no single editor controlling [its] selection and presentation." Pet. App. 34a-35a (quoting First Report and Order, 8 FCC Red 998, 1000$15 (1993)). Thus, in order to avoid exposing their children to indecent programming, "subscribers would have two, equally unacceptable options." Ibid. They could "continual] y activate or deactivate their lockboxes, inevitably risking a slip up or a lapse that would expose their children to indecency." Ibid. Or they could lock out leased channels permanently, "thereby giving up leased access programming altogether." Ibid. Thus, a system of voluntary blocking based on lockboxes imposes special burdens on subscribers that are not imposed by Section 10(b)'s mandatory blocking and segregation scheme. Moreover, because the effective use of lockboxes depends upon parental vigilance and initiative to shield minors from indecent programming, that method risks much greater access to indecent materials than the segregation and blocking scheme imposed by Section 10(b). As the courts that have upheld the constitutionality of the government's efforts to protect children from indecent telephone messages (so-called "dial-a-porn") have concluded, voluntary blocking "would not even come close" to eliminating the access of minors to indecent messages. Dial Information Services v. Thorn- burgh, 938 F.2d 1535, 1542 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992); see also Information Providers' ---------------------------------------- Page Break ---------------------------------------- 18 Coalition V. FCC, 928 F.2d 866, 873 (9th Cir. 1991) (upholding Commission's finding that "voluntary blocking would not be an effective means of limiting minors' access to dial-a-porn services"). Finally, Section 10(b) imposes a "minimal[]" burden on those adults who desire to watch indecent leased access programming. Pet. App. 35a. The statute's segrega- tion and blocking scheme does not forbid any adult subscriber from receiving indecent programming it merely conditions receipt upon a request. 47 U.S.C. 532(j)(1)(B) (Supp. v 1993). b. Petitioners also complain that the legislative record is insufficient to support Congress's choice of a segregation and blocking scheme over use of lock- boxes. DAETC-Pet. 23; Alliance Pet. 25. But Section 10(b)'s segregation and blocking scheme was based on similar blocking requirements used to control chil- dren's access to dial-a-porn. See 138 Cong. Rec. S646 (daily ed. Jan. 30, 1992) (statement of Sen. Helms). In the dial-a-porn arena, experience had proved voluntary blocking alternatives ineffective. See Dial Information Services v. Thornburgh, 933 F.2d 1535. 1542 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992): Information Providers' Coalition v. FCC, 928 F.2d 866, 873 (9th Cir. 1991). Congress Could reasonably draw upon the knowledge gained in constructing that analogous legislation to conclude that a similar voluntary method of attempting to protect children from indecent leased access programming would not as effectively achieve its goals. c. Petitioner DAETC asserts that Section 10(b) is unjustifiably "underinclusive" because it applies to indecent programming on leased access channels but not on commercial channels. DAETC Pet. 22. But ---------------------------------------- Page Break ---------------------------------------- 19 the problem of an unwilling subscriber being confronted with indecent programming is far more acute on leased access channels. Unlike commercial channels, leased access channels are not controlled by a single editor, but instead carry programming from a wide variety of sources; "[w]hat will appear on these channels, and when, is anyone's guess." Pet. App. 40a. Moreover, much of the indecent programming carried on non-access channels is provided through "per- program or per-channel services that subscribers must specifically request in advance," and that therefore provide the functional equivalent of Section 10(b)'s segregation and blocking requirement. Pet. App. 40a-41a (quoting First Report and Order, 8 FCC Red at 1001 Par. 19 n.20). Indeed, as the court of appeals observed, had Congress imposed controls of this type beyond the area where the problem it was addressing-exposure of children to indecency- existed, its action would have presented distinct First Amendment problems. Pet. App. 41a. In short, "there is no constitutional rule forbidding Congress from addressing only the most severe aspects of this problem, and there are constitutional doctrines, such as narrow tailoring and least restrictive means, that may have constrained it from going further than necessary." Pet. App. 41a. e. Finally, the definition of indecent programming employed by Section 10 and the Commission's imple- menting regulations is not unconstitutionally vague, as petitioner DAETC contends. DAETC Pet. 12-16. The statute and the regulations define indecent programming to mean "programming * * * that describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by ---------------------------------------- Page Break ---------------------------------------- 20 contemporary community standards for the cable medium." 47 C.F.R. 76.701(g) see 47 U.S.C. 532(h) (Supp. V 1993). That definition is. virtually identical to the Commission's generic definition of indecency, differing only insofar as it is tailored to the "cable medium." In the area of broadcast regulation, this definition has repeatedly been upheld as being "suffi- ciently defined to provide guidance to the person of ordinary intelligence in the conduct of his affairs ." Action for Children's Television v. FCC, 852 F.2d 1332, 1338-1340 (D.C. Cir. 1988); Action Children`s Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); see FCC v. Pacifica Found., 438 U.S. 726 (1978). And tailoring the definition to other mediums (such as telephones) does not render the definition any more subject to vagueness concerns. E.g., Dial Information Servs., 938 F.2d at 1540-1541; Information Providers' Coali- tion, 928 F.2d at 875. See also Sable Communi- cations v. FCC, 492 U.S. 115 (1989). DAETC contends that its vagueness concerns are accentuated by Section 10(b)'s reference to a cable operator's "reasonable belief" that the programming at issue is indecent. DAETC Pet. 12-13. Far from ex- panding the category of what may be found subject to the statute, however, the requirement underscores that the operator may not exercise his editorial control unless his belief that the material at issue is indecent is objectively "reasonable." ---------------------------------------- Page Break ---------------------------------------- 21 CONCLUSION The petition for a writ of certiorari should be den- ied. Respectfully submitted. WILLIAM E. KENNARD General Counsel CHRISTOPHER J. WRIGHT Deputy General Counsel DANIEL M. ARMSTRONG Associate General Counsel GREGORY M. CHRISTOPHER Counsel Federal Communications Commission DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General BARBARA L. HERWIG JACOB M. LEWIS Attorneys OCTOBER 1995