Alliance for Community Media v. F.C.C., s. 93-1169

• Citation: 10 F.3d 812
• Decision Date: 23 November 1993
• Docket Number: 93-1171,Nos. 93-1169,93-1270 and 93-1276,s. 93-1169
• Parties: , 22 Media L. Rep. 1033 ALLIANCE FOR COMMUNITY MEDIA; the Alliance for Communications Democracy; People for the American Way, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents, New York Citizens Committee for Responsible Media; Media Access New York; Brooklyn Producers' Group; David Channon; National Cable Television Association, Inc., Intervenors (Two Cases). DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM; American Civil Liberties Union, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents. New York Citizens Committee for Responsible Media; Media Access New York; Brooklyn Producers' Group; David Channon; National Cable Television Association, Inc., Intervenors, Morality in Media, Amicus Curiae. AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents, New York Citizens Committee for Responsible Media; Media Access New York; Brooklyn Producers' Group; David Channon; National Cable Television Association, Inc., Intervenors, National Law Center for Children and Families; National Legal Foundation, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 812

10 F.3d 812

304 U.S.App.D.C. 37, 22 Media L. Rep. 1033

ALLIANCE FOR COMMUNITY MEDIA; the Alliance for

Communications Democracy; People for the American

Way, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors (Two Cases).

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM;

American Civil Liberties Union, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors,

Morality in Media, Amicus Curiae.

AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors,

National Law Center for Children and Families; National

Legal Foundation, Amici Curiae.

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

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 14, 1993.

Decided Nov. 23, 1993.

Rehearing Denied; Rehearing In Banc Granted, Judgment

Vacated Feb. 16, 1994.

Petition for Review of an Order of the Federal Communications Commission.

I. Michael Greenberger, argued the cause for petitioners in Nos. 93-1169, 93-1171, 93-1270 and 93-1276. With him on the joint briefs were Charles S. Sims, Marjorie Heins, Lisolette E. Mitz, Arthur Barry Spitzer, James Ned Horwood, Andrew Jay Schwartzman and Elliot M. Mincberg. Michael Kenneth Isenman was on the brief for petitioners the Alliance for Communications Democracy and People for the American Way in No. 93-1270.

Gregory M. Christopher, Counsel, F.C.C., argued the cause for respondents. With him on the brief were Renee Licht, Acting Gen. Counsel, F.C.C., Daniel McMullen Armstrong, Associate Gen. Counsel, F.C.C., Stuart E. Schiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Barbara L. Herwig and Jacob M. Lewis, Attys., U.S. Dept. of Justice.

On the brief for intervenor Nat. Cable Television Ass'n, Inc., were Daniel Leslie Brenner, Michael Stuart Schooler and Diane B. Burstein.

On the joint brief for amicus curiae Nat. Law Center for Children and Families and Nat. Family Legal Foundation, were H. Robert Showers, Jr., and James P. Mueller.

Robert Thomas Perry, entered an appearance for intervenors New York Citizens Committee for Responsible Media, Media Access New York, Brooklyn Producers' Group and David Channon.

Paul J. McGeady, entered an appearance for amicus curiae Morality in Media in No. 93-1171.

Before MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioners, a group of cable programmers and organizations of listeners and viewers, seek review of two orders issued by the Federal Communications Commission ("FCC" or "Commission") regulating indecent programming on cable "access" channels. Access channels are those channels a cable operator must set aside for public, educational, or governmental use ("PEG access") or use by unaffiliated commercial programmers ("leased access"). ¹ We examine two constitutional questions: First, when the government compels private cable operators to relinquish editorial control over a certain number of "access" channels, making these available for general use by unaffiliated programmers, may it permit cable operators to deny access on those channels to programs that are "indecent," as defined by the FCC? Second, if the cable operator does not ban "indecent" programs from leased access channels, may the government compel the cable operators to place on a separate channel all leased access programs that the programmer as required by law, has identified as "indecent," and to block such channel until the subscriber requests in writing that the block be lifted? As to the first question, we hold that not only does the First Amendment prohibit the government from banning all indecent speech from access channels, it also prevents the government from deputizing cable operators with the power to effect such a ban. As to the second question, in view of the constitutional problems of underinclusiveness presented by the total lack of regulation of indecent programming on commercial cable channels, we decline at this juncture to rule definitively on the constitutionality of the blocked access channel without permitting the Commission to cure the underinclusiveness of the regulations or to justify adequately its regulatory approach apart from the operator ban.

I. BACKGROUND

When Congress passed the Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2779 ("1984 Act"), it sought, among other things, to "assure that cable communications provide ... the widest possible diversity of information sources and services to the public." 47 U.S.C. Sec. 521. To achieve this goal, the 1984 Act required cable operators to set aside "leased access" channels for commercial use by any entity not affiliated with the cable operator. Id. at Sec. 532(b). It further authorized franchising authorities to require cable operators to provide "PEG access" channels for public, educational and governmental use. Id. at Sec. 531. Because the 1984 Act barred cable operators from exercising any editorial control over either type of access channels, id. at Secs. 531(e), 532(c)(2) (amended 1992), it granted cable operators immunity from liability for any access channel programming, id. at Sec. 558 (amended 1992).

The House Report on the 1984 Act conceived of access channels as "the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet." H.R.Rep. No. 934, 98th Cong., 2d Sess. 30 (1984), U.S.Code Cong. & Admin.News 1984, pp. 4655, 4667. As such, Congress embraced access channels as a way to "provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." Id. However, the statute did not grant leased or PEG access to material unprotected by the Constitution. 47 U.S.C. Secs. 532(h), 544(d) (amended 1992). In addition, Congress required cable operators to provide subscribers with a "lock-box" that would allow an adult to "prohibit viewing of a particular cable service during periods selected by that subscriber." Id. at Sec. 544(d)(2)(A).

In 1992 Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. No. 102-385, 106 Stat. 1460 (to be codified at 47 U.S.C. Secs. 531, 532(h), 532(j) & 558) ("1992 Act" or "Act"). Section 10 of the Act ("section 10") worked two changes, now being challenged before this court. First, it permits a cable operator to prohibit indecent programming on all access channels. Pub.L. No. 102-385, Sec. 10(a) & (c), 106 Stat. at 1486. Second, it compels those cable operators who do not bar indecent programming on leased channels to place such material on separate channels that the subscriber can only view by prior written request. Id. at Sec. 10(b). In detail, the 1992 Act gives cable operators the authority to refuse leased access to what they reasonably perceive to be indecent programming. Id. at Sec. 10(a). It also requires the FCC to promulgate regulations with respect to leased access channels "requiring cable operators [who do not exercise their authority to refuse access to 'indecent material'] to place on a single channel all indecent programs, as identified by program providers." Id. at Sec. 10(b). This channel must be blocked unless the subscriber requests access to the channel in writing. Id. The Act requires the FCC to promulgate regulations with respect to PEG channels, allowing the cable operator to prohibit "any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct." Id. at Sec. 10(c). Finally, it removes cable operators' immunity from liability for access programming insofar as it "involves obscene material." Id. at Sec. 10(d).

In late 1992 the Commission commenced informal rulemaking which resulted in the rules at issue in this case. In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 7 F.C.C.R. 7709 (1992) (notice of proposed rulemaking); 8 F.C.C.R. 998 (1993) (first report and order) [hereinafter: "First Report and Order"]; 8 F.C.C.R. 2638 (1993) (second report and order). The implementing regulations largely track the statute. With respect to leased access they allow the cable operator to "prohibit[ ] any programming which it reasonably believes" is indecent; require programmers to identify any part of their own programming they consider indecent (failure of which would allow the cable operator to deny access); and require the cable operator either to keep such programming from being transmitted or to place all such programming on blocked channels to which the subscriber can request access in writing. Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 58 Fed.Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R. Sec. 76.701). With respect to PEG access, the regulations permit a cable operator to "prohibit ... any programming which contains obscene material, indecent material ..., or material soliciting or promoting unlawful conduct[, i.e.] ... material that is otherwise proscribed by law," and authorize cable operators to require programmers to certify that their programs do not contain any material in these categories. Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 58 Fed.Reg. 19,623,...