Sorry, the garbage created when I tried to transfer files will keep this from being great fireside reading. It might help for searching, until I get around to a cleaner copy.

From: Subject: Date: Thu, 19 Dec 2002 14:54:05 -0600 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0005_01C2A76E.7AD4C200" X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 This is a multi-part message in MIME format. ------=_NextPart_000_0005_01C2A76E.7AD4C200 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: file://C:\JESUS\ABORTION\Lawsuit\To%20Post%20on%20Web\Articles&Casesplus.htm

47 USCS =A7 531

1995-2000 history

(Page 33:) ROBERT M. GOLDBERG, = Plaintiff-Appellant,-v.-CABLEVISION=20 SYSTEMS CORPORATION, a Delaware Corporation, A cable producer won the = right to=20 sell tapes of the show in a 25 second ad. The cable company had not even = summarily canceled him, but had simply required that he delete the ad as = a=20 condition of airing the rest of the show. Goldberg refused! And won!

(Page 45:) THOMAS LOCE and ED RICHTER both individually and doing = business as=20 LIFE WITHOUT SHAME, Plaintiffs-Appellants-Cross-Appellees,- v. = -TIME=20 WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP d/b/a TIME WARNER=20 COMMUNICATIONS and TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE d/b/a TIME = WARNER=20 CABLE, Not just sex, not just violence, but sexual violence, including a = woman=20 murdered on film! Yet both the district and appeals courts ruled that = +Time=20 Warner=3Ds policies of (a) requiring programmers to certify that they = would not=20 submit programs that Time Warner would consider indecent, and (b) = suspending=20 programmers who had submitted programs that Time Warner considered = indecent, and=20 refusing to allow further program submissions by such programmers, = violated the=20 Act.+! The court agreed Time Warner had the right not to air those = particular=20 shows, but said excluding any future shows from a given producer for a=20 +lifetime+ or even for +6 months+ (Mediacom has a 6 months ban) is too=20 restrictive. Time Warner said the costs of a tape by tape review (Which = Mediacom=20 is now doing) would be prohibitive, but the court notes the USC permits = a fee=20 structure for users, and the court even smiled favorably on the = suggestion of=20 the plaintiff that there could be fines to cover the cost of a second=20 pre-screening, should the first screening come up with violations.

(Page 62:) JERRY MCCLELLAN, JONATHAN COOPER, and NOTU BAYONNE,=20 Plaintiffs-Appellants, v. CABLEVISION OF CONNECTICUT, INC., = CABLEVISION=20 OF CONNECTICUT, LIMITED PARTNERSHIP, and CABLEVISION SYSTEMS

OF SOUTHERN CONNECTICUT, L.P., Defendants-Appellees, The = producer won,=20 but the only issue on appeal was whether the law gave him a +private = cause of=20 action+. In other words, whether a cable access show producer has a = right to go=20 to court, or if he has to wait for a public prosecutor to become = interested. The=20 merits of his sexual show were never addressed. I don=3Dt know what = happened next.=20

(Page 78:) Article: POLITICAL PROGRAMMING ISSUES ON PEG = CHANNELS

(Page 87:) State of Nebraska, Appellee, v. Scott A. Harrold, = Appellant.=20 Case Caption State v. Harrold A clown masturbates on his cable = access=20 show, and the court decides if the sexual interest it arouses is not = perverted=20 it is not +obscene+ but merely +indecent+, and hence subject to = constitutional=20 protection! But the kicker is that there is no issue of whether the = clown can=20 masturbate on cable access TV. Of course he can. The cable company = broadcast it=20 without batting an eye. The case is whether he should be prosecuted for = the=20 crime of obscenity! This was not a civil but a criminal case!

(Page 106:) Short article about (Rickel v. Mountain = Valley=20 Television Corporation, et al., No. C-96-1033 DLJ, United States = District=20 Court for the Northern District of California, 1996 U.S. Dist. LEXIS = 19961,=20 November 27, 1996.) Facts: Rickel was accused of using subliminal = advertising,=20 which is against policy. Rickel tried to explain to the board it was=20 unintentional and he wouldn=3Dt do it again. The board finally decided = to give him=20 another chance but to preview tapes. Rickel refused and sued. But none = of these=20 facts were addressed in the case. Rickel=3Ds suit was dismissed because = the board=20 was not the management of a cable company, but a nonprofit corporation = organized=20 to manage the cable access channel, which could not be sued! At least I = THINK=20 that is the meaning of this ruling: +Because plaintiff presents no = evidence to=20 create a factual dispute as to MVTC=3Ds being a `cable operator=3D = within the=20 meaning of the Act or MVTC=3Ds having conspired with Century [Century=20 Communications Corporation operates cable services in the City of Ukiah = and in=20 Mendocino County], the Court must grant summary judgment for = defendants.+ (I=20 can=3Dt get the actual case online.)

Page 108 GEORGE MOSS, MARIJUANA = REFORM=20 PARTY, THOMAS K. LEIGHTON, JEFFREY C. WRIGHT, AND CORINNE E. KURTZ, = Plaintiffs,=20 -against- CABLEVISION SYSTEMS CORPORATION, A DELAWARE CORPORATION, = Defendant.=20

Page 126 PLANNED PARENTHOOD OF = THE=20 COLUMBIA/WILLAMETTE, INC. v.

P. 216 Coplin v. Fairfield Pub. Access Television, 111 = F.3d=20 1395, 1398 (8th Cir. 1997)

P. 247 Demarest v. AthoL/Orange Community = Television.=20 Inc., 188 F.Supp.2d 82, 99 (D. Mass. 2002)

P. 267 Gillett Communications of Atlanta, Inc. v. Becker, 807 F.Supp. = 757=20 (N.D. Ga. 1992),

P. 280 BECKER v. F.C.C. 95 F.3d 75

47 USCS =A7 531

GO = TO CODE ARCHIVE=20 DIRECTORY FOR THIS JURISDICTION

=A7 531. Cable channels for public, educational, or governmental = use=20

(a) Authority to establish requirements with respect to = designation or=20 use of channel capacity. A franchising authority may establish requirements = in a=20 franchise with respect to the designation or use of channel capacity for = public, educational, or governmental use only to the extent = provided in this=20 section.

(b) Authority to require designation for public, = educational,=20 or governmental use. A franchising authority may in its request for = proposals=20 require as part of a franchise, and may require as part of a cable = operator=3Ds=20 proposal for a franchise renewal, subject to section 626 [47 USCS =A7 = 546],=20 that channel capacity be designated for public, educational, or = governmental=20 use, and channel capacity or institutional networks be designated = for=20 educational or governmental use, and may require rules and procedures = for the=20 use of the channel capacity designated pursuant to this section. =

(c)=20 Enforcement authority. A franchising authority may enforce any = requirement in=20 any franchise regarding the providing or use of such channel capacity. = Such=20 enforcement authority includes the authority to enforce any provisions = of the=20 franchise for services, facilities, or equipment proposed by the cable = operator=20 which relate to public, educational, or governmental use of channel = capacity,=20 whether or not required by the franchising authority pursuant to = subsection (b).=20

(d) Promulgation of rules and procedures. In the case of any = franchise=20 under which channel capacity is designated under subsection (b), the = franchising=20 authority shall prescribe--
(1) rules and procedures under which the = cable=20 operator is permitted to use such channel capacity for the provision of = other=20 services if such channel capacity is not being used for the purposes = designated,=20 and
(2) rules and procedures under which such permitted use shall = cease.=20

(e) = Editorial control=20 by cable operator. Subject to section 624(d) [47 USCS =A7 = 544(d)], a cable=20 operator shall not exercise any editorial control over any public, = educational,=20 or governmental use of channel capacity provided pursuant to this = section,=20 except a cable operator may refuse to transmit any public access program = or=20 portion of a public access program which contains obscenity, indecency, = or=20 nudity.

(f) = +Institutional network+=20 defined. For purposes of this section, the term +institutional network+ = means a=20 communication network which is constructed or operated by the cable = operator and=20 which is generally available only to subscribers who are not residential = subscribers.

HISTORY:
(June 19, 1934, ch 652, Title = VI, Part=20 II, =A7 611, as added Oct. 30, 1984, P.L. 98-549, =A7 2, 98 Stat. 2782; = Feb. 8,=20 1996, P.L. 104-104, Title V, Subtitle A, =A7 506(a), 110 Stat. 136.)=20

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective = date of=20 section:
Act Oct. 30, 1984, P.L. 98-549, =A7 9(a), 98 Stat. 2806, = which=20 appears as 47 USCS =A7 521 note, provides that this section shall = be=20 effective 60 days after enactment on Oct. 30, 1984.

Amendments:=20
1996. Act Feb. 8, 1996, in subsec. (e), inserted +, except a cable = operator=20 may refuse to transmit any public access program or portion of a public = access=20 program which contains obscenity, indecency, or nudity+.

Other=20 provisions:
Regulations regarding indecent programming on leased = access=20 channels. Act Oct. 5, 1992, P.L. 102-385, =A7 10(c), 106 Stat. 1486, = provides:=20 +Within 180 days following the date of the enactment of this Act, the = Federal=20 Communications Commission shall promulgate such regulations as may be = necessary=20 to enable a cable operator of a cable system to prohibit the use, on = such=20 system, of any channel capacity of any public, educational, or = governmental=20 access facility for any programming which contains obscene material, = sexually=20 explicit conduct, or material soliciting or promoting unlawful = conduct.+.=20

NOTES:

CODE OF FEDERAL REGULATIONS
Federal=20 Communications Commission--Multichannel video and cable television = services, 47=20 CFR Part 76.

CROSS REFERENCES
This section is referred to in = 47=20 USCS =A7=A7 532, 534, 535, 541, 573.

RESEARCH GUIDE
Am = Jur:
74=20 Am Jur 2d, Telecommunications =A7=A7 169, 171.

Forms:
17 Am = Jur Legal=20 Forms 2d, Telecommunications =A7=A7 245:60, 62.

INTERPRETIVE = NOTES AND=20 DECISIONS
1. Constitutionality
2. Private right of action
3. = Editorial control
4. Institutional network capacity
5. = Injunctive relief=20

1. Constitutionality
47 USCS =A7 531(note), = permitting cable TV=20 operators to prohibit indecent programming on channels set aside for = public,=20 educational, or governmental purposes, violated First Amendment, since = such=20 prohibition had not been shown to be necessary to protect children or=20 appropriately tailored to secure that end. Denver Area Educ. Telcoms. = Consortium v FCC (1996) 518 US 727, 135 L Ed 2d 888, 116 S Ct 2374, 96 = CDOS=20 4792, 96 Daily Journal DAR 7697, 10 FLW Fed S 139 (criticized in = Coplin v=20 Fairfield Pub. Access TV Comm. (1997, CA8 Iowa) 111 F3d 1395, 25 Media L = R=20 1737).
Statute allowing local cable television franchising = authorities=20 to require that franchise proposals submitted by aspiring cable = operators=20 contain assurances that portion of their channel capacity will be = designated for=20 public, educational, or governmental use does not violate First = Amendment rights=20 of cable television owner/operators and programmers because (1) statute = is=20 content neutral, (2) statute was enacted in order to enable broad range = of=20 speakers to reach television audience that otherwise would never hear = them,=20 which is appropriate goal and legitimate exercise of federal legislative = power,=20 and (3) statute does not overreach. Daniels Cablevision v United = States=20 (1993, DC Dist Col) 835 F Supp 1, 21 Media L R 2225, subsequent app = sub nom=20 Time Warner Entertainment Co., L.P. v FCC (1996, App DC) 320 US App = DC 294,=20 93 F3d 957, reh, en banc, den (1997, App DC) 323 US App DC 109, = 105 F3d=20 723 and affd in part and revd in part on other grounds (2000, App = DC) 341=20 US App DC 255, 211 F3d 1313, 28 Media L R 1967, cert den (2001) = 531 US=20 1183, 148 L Ed 2d 1026, 121 S Ct 1167.

2. Private right of = action=20
47 USCS =A7 531(e) provides implied private cause of action = for cable=20 programmers against cable company through provision prohibiting = editorial=20 control over public access channels. McClellan v Cablevision of = Connecticut=20 (1998, CA2 Conn) 149 F3d 161.

3. Editorial control
Cable = company=20 with channel capacity designated for public, educational, or = governmental use=20 may be described with respect to such use as public, educational, or=20 governmental access facility, and cable company is not permitted to = exercise=20 editorial control over such channel, except with regard to obscenity = matters.=20 Glendora v Cablevision Sys. Corp. (1995, CA2 NY) 45 F3d 36.=20
Preliminary injunction will issue directing cable television = operator to=20 permit airing of +Hippie Talk Show+ featuring candidates of Marijuana = Reform=20 Party, even though operator contends that show amounts to political = commercial=20 that is beyond scope of public, educational, or governmental channel, = where=20 47 USCS =A7 531(e) states that +operator shall not exercise any = editorial=20 control over any public, educational, or governmental use of channel = capacity,+=20 because show proponents have established likelihood of success on merits = of=20 claim that operator violated =A7 531(e), as well as New York law. = Moss v=20 Cablevision Sys. Corp. (1998, ED NY) 22 F Supp 2d 1.

4.=20 Institutional network capacity
FCC=3Ds requirement that open video = system=20 operators must provide capacity on institutional networks only if = operator has=20 voluntarily elected to build such network was in accord with statute = which did=20 not permit localities to require cable operators to build institutional=20 networks. City of Dallas v FCC (1999, CA5) 165 F3d 341. =

5.=20 Injunctive relief
Public access cable television program producer is = denied=20 preliminary injunction against transfer of control of scheduling and = channel=20 location of her program from broadcaster to municipalities, even though = her show=20 will be less visible if it is broadcast at different times and on = different=20 channels in various municipalities, because she does not present = persuasive=20 First Amendment case since she is not being prevented from speaking and = cannot=20 show that restructuring is in violation of state or federal regulations = under=20 47 USCS =A7 531. Glendora v Malone (1996, SD NY) 911 F Supp = 142,=20 dismd, in part, application gr, application den (1996, SD NY) 917 F = Supp=20 224 and affd (1996, CA2 NY) 1996 US App LEXIS 18571, cert den = (1996) 519 US 932, 136 L Ed 2d 223, 117 S Ct 306 and cert den = (1997)=20 519 US 1079, 136 L Ed 2d 681, 117 S Ct 743.
Preliminary = injunction will=20 issue directing cable television operator to permit airing of +Hippie = Talk Show+=20 featuring candidates of Marijuana Reform Party, even though operator = contends=20 that show amounts to political commercial that is beyond scope of = public,=20 educational, or governmental channel, where 47 USCS =A7 531(e) = states that=20 +operator shall not exercise any editorial control over any public, = educational,=20 or governmental use of channel capacity,+ because show proponents have=20 established likelihood of success on merits of claim that operator = violated =A7=20 531(e), as well as New York law. Moss v Cablevision Sys. Corp. (1998, = ED NY)=20 22 F Supp 2d 1.

1995

Operator and Business
1995
Increased awareness of = programming=20 from DirecTV and USSB advertising also increases cable customers. There = are more=20 than 62.1 million cable customers, 2.2 million authorized DBS customers = and more=20 than 670,000 MMDS customers.

RBOCs begin making strategically=20 significant investments in wireless cable systems in order to = immediately enter=20 the video entertainment market. MMDS companies gain badly needed capital = to=20 invest in the digital compression technology necessary to expand beyond = 20 to 30=20 channels of programming. Bell Atlantic Corp. and NYNEX Corp. invest up = to $100=20 million in CAI Wireless Systems, Inc. Pacific Telesis agrees to pay $175 = million=20 - $175 million for Cross Country Wireless Cable in Riverside, Calif. and = another=20 $160 to $175 million for MMDS channels owned by Transworld Holdings Inc. = and=20 Videotron Inc. in California and other locations.

Telcos = generally=20 abandon the video dialtone strategy established in Section 214 of the=20 Communications Act--citing FCC approval delays--and apply for cable = franchises.=20 Ameritech acquires franchises in Ohio.

Cable mergers and = consolidations=20 escalate. Time Warner announces a merger with Turner Broadcasting which = sets off=20 a legal battle with TimeWarner=3Ds partner, U S West. Among those = leaving the=20 industry are Colony, Sammons, Columbia International, Gaylord, United = Video=20 Cable, Multimedia, Douglas, Greater Media and Scripps-Howard. MSOs trade = systems=20 to consolidate media markets for management efficiencies and to = introduce=20 services like telephony and high speed cable modems which offer access = to the=20 Internet at 1,000 times the speed of a conventional telephone line.

Time Warner=3Ds FSN in Orlando reaches its 4,000 customer goal. Other = MSOs=20 continue two-way upgrades with fiber optics and digital switches to = prepare for=20 telephone and data services.

The NCTA coordinates a = high-profile,=20 customer service initiative, the +On-time Guarantee+ program. National=20 advertising and support materials for local advertising communicate the=20 industry=3Ds dramatic improvements in service and are responsible for = improving=20 customer attitudes toward cable.

Women in Cable changes its name = to=20 better reflect the industry=3Ds evolution and future opportunities. SCTE = and CTAM=20 follow suit. The results are Women in Cable & Telecommunications, = Society of=20 Cable Telecommunications Engineers, and Cable & Telecommunications: = A=20 Marketing Society.

Cable takes a leadership role in reducing the = amount=20 of violence on television and creating quality programming for children. = Cable=3Ds=20 40 networks contribute 80% of the TV hours devoted to children. =

Rainbow=20 Programming (today Rainbow Media)purchases the Madison Square Garden = Corporation=20 in partnership with ITT. The deal includes the MSG Network as well as = the Knicks=20 and Rangers.

1996
Financial transactions in the = communications=20 industry total $113 billion in 524 deals, the first time the industry = surpasses=20 $100 billion in a calendar year. A total of 15 reported deals are valued = at $1=20 billion or more, capped by Walt Disney Co=3Ds $19 billion acquisition of = Capital=20 Cities/ABC and U S West Media Group=3Ds $10.8 billion purchase of = Continental=20 Cablevision.

Ad sales growth jumps significantly due to the=20 proliferation of digital ad insertion and interconnects, the migration = of=20 viewers to cable and concerted efforts of the cable rep firms. The = year=3Ds spot=20 revenue totals $192.6 million

Cable industry announces an = unprecedented=20 education initiative building on the foundation of the Cable in the = Classroom=20 initiative. The commitment requires cable companies introducing = high-speed=20 digital data services to equip at least one site, in every consenting = elementary=20 and secondary school passed by cable, with a cable modem providing basic = high-speed access to the Internet--free of charge.

DBS emerges = as a=20 serious threat to cable. AT&T invests more than $137 million in = DirecTV.=20 EchoStar Communications Corp. launches its high power service, +Dish = Network,+=20 which offers similar programming at prices below DirecTV and USSB. = AlphaStar=20 Television also launches. DBS providers end the year with 4.3 million=20 subscribers, almost double the industry=3Ds 1995 total. A price war = between the=20 competitors slashes small dish prices to $149.

The three RBOCs = backing=20 Tele-TV plan to scale back, if not scuttle, their ambitious TV = programming=20 venture. Bell Atlantic and Nynex also +suspend+ their business agreement = with=20 CAI Wireless, dropping plans for a spring 1997 launch of digital MMDS = systems in=20 Boston and Hampton Roads, Virginia. Pacific Telesis also scraps its $175 = million=20 deal to buy wireless systems in San Francisco, Seattle, San Diego, Tampa = and=20 other markets. BellSouth continues to pursue MMDS by acquiring the = rights for=20 licenses in Atlanta, Miami and New Orleans. BellSouth Corp agrees to pay = $12=20 million for MMDS channels in New Orleans.

Though most RBOCs = shift focus=20 from overbuilding cable systems to concentrating on opportunities to = develop a=20 long distance business, Ameritech captures 27 cable franchises and turns = on=20 video-delivery service in the Chicago, Cleveland, Columbus and Detroit = Markets.=20 BellSouth wins 11 cable franchises and starts service in suburban = Atlanta, and=20 Southern New England plans to turn on cable service in Connecticut in = 1997.

GTE passes 96,000 households in Clearwater, Fla. and announces plans = to=20 +build video networks in 66 markets reaching seven million U.S. = households by=20 the year 2003.+ Otherwise, PacTel Video Services begins offering 71 = channels of=20 cable service in direct competition with TCI in San Jose, Calif. =

NAMIC,=20 the National Association of Minorities in Cable, changes its name from = Cable to=20 Communications.

Tele-Communications, Inc. and Viacom Inc. = complete a=20 complicated $2.3 billion stock swap deal to transfer Viacom=3Ds cable = properties=20 to TCI.

TCI sells Carolco Pictures to Rupert Murdoch=3Ds News = Corp. for=20 $50 million.

1996-97
TCI and Time Warner delay planned = launches of telephony services to cable subs in several markets; Cox and = Adelphia Communications maintain their telephony roll out plans. Delays = are due=20 primarily from an uncertain regulatory climate. Technology for telephony = over an=20 HFC network is plagued by concern about powering and reliability about = 911 and=20 Enhanced 911 services, but launches using traditional fiber and twisted = pair=20 cable are possible.

1997
Time Warner shuts down its = Full=20 Service Network in Orlando at year=3Ds end. It will use technical and = marketing=20 data gathered from the 750 MHz HFC system to launch its Pegasus digital = product=20 in cable systems nationwide.

Several cable operators sign=20 interconnection agreements with RBOCS to launch integrated packages of = voice and=20 video services.

BellSouth announces an agreement to buy American = Telecasting MMDS systems in nine Florida and Kentucky markets. =

On July=20 1, an agreement signed by The National Cable Television Center and = Museum, the=20 Cable TV Pioneers and Penn State, provides for the relocation of = financial=20 assets and collections of The Center Library and The Center Museum to = Denver=20 from Pennsylvania. Interim offices for the Denver location had been = established=20 earlier.

Cable stock prices increase, partly as a result of = Microsoft=20 Corporation=3Ds $1 billion investment in Comcast Corp. which endorses = the cable=20 industry=3Ds broadband technology and highlights the industry=3Ds = potential. Cable=20 cash flow growth rebounds, encouraging outside investors, including The = Carlyle=20 Group, Robert Bass=3Ds Keystone and the Blackstone Group, to pour money = back into=20 cable. TCI stock price climbs nearly 65% from $14 a share in December = 1996 to=20 $23 per share by December 1997.

The cable industry invests over = $5=20 billion in upgrading its equipment to push quickly into high speed data = service=20 and digital service. Almost 100,000 customers in 29 states have two way = cable=20 modems. Biggest services are Time Warner=3Ds Road Runner and MediaOne = which=20 announce an alliance. Cable telephony is launched in several markets by=20 MediaOne, Cox, Cablevision, Jones, and Adelphia.

Total = advertising=20 revenue jumps, reflecting cable=3Ds consistent ratings increases and = recognition=20 by the advertising community. Local spot revenue rose 15% for a total of = $1.912=20 billion, or $29.09 per subscriber. The top 25 basic cable advertisers = accounted=20 for about 1/3 of the total revenue. The top three advertisers are = Proctor and=20 Gamble ($214.4 million), Time Warner ($118.6 million) and AT&T ($93=20 million).

Some RBOCs shift strategy, including SBC subsidiary = Pacific=20 Telesis Group, which shuts down its 8,000 subscriber full service = network in San=20 Jose, Calif. while reluctantly retaining wireless operations in Los = Angeles and=20 Orange County. SBC sels its majority ownership in cable systems in = Virginia and=20 Maryland back to Prime Cable for $637 million in a new partnership = backed by The=20 Carlyle Group, and pulls out of the six-member Americast consortium. = Ameritech=20 forges ahead with its hardwire cable strategy by obtaining over 35 = franchises in=20 Michigan, Ohio and Illinois.

The $10.8 billion merger culminated = in late=20 1996 between Continental Cablevision and U.S. West Media Group Inc., = changes its=20 name to MediaOne Group, Inc. and, surprisingly, moves its headquarters = from=20 Boston to Denver. As a result, Continental founder and CEO, Amos = Hostetter, and=20 several top executives decline to move and exit the company. U.S. West = also=20 announces it will split its telephone operations from its now five = million=20 subscriber cable MSO.

The bankrupt DBS provider, AlphaStar = Television=20 Network, agrees to sell substantially all of its assets for $3.3 = million.=20

In a major financial restructuring effort, TCI joint ventures = with=20 several cable MSOs to swap and transfer four million of the company=3Ds = 14 million=20 subscribers and $5 to $6 billion in debt. Major deals include = transferring=20 445,000 subscribers to Bresnan Communications, 268,000 subscribers to=20 InterMedia/Blackstone Group, 613,000 subscribers to Time Warner Cable, = 820,000=20 subscribers in the New York area to Cablevision Systems Corp. and = 542,000=20 subscribers to MediaOne in Chicago. When all the deals are completed, = Time=20 Warner will become the largest MSO with 13 million customers while TCI = will fall=20 to about 10 million customers.

Bell Atlantic Corp. and Nynex = Corp.=20 complete their merger, just hours after FCC approval. The new company is = named=20 Bell Atlantic and promises to roll out a more robust video product in = 1998,=20 including a full-service fiber optic network in Philadelphia that = delivers=20 telephony and video.

Programmers, including MTV Networks, Inc., = The Walt=20 Disney Co and Lifetime plan to roll out digital channels in anticipation = to the=20 abundance of channels cable operators will have in 1998 as they roll out = digital=20 tiers of programming. More than 10 million households were passed by = digital=20 cable by year end.

TCI sells its SummiTrak customer care and = billing=20 software platform for $106 million plus $26 million in contingent = payments to=20 CSG systems International. TCI had been rival billing company, = CableData=3Ds=20 biggest customer. When CSG consolidates TCI=3Ds 13 million customers = into its CCS=20 system, it nearly triples its business and will serve 27 million cable = subs -=20 41% of all customers in the U.S.

WorldCom agrees to acquire the=20 infrastructure of top Internet Service Providers, (ISPs) American Online = and=20 CompuServe, creating a powerful broadband networking company which plans = to=20 market Digital Subscriber Line (DSL) Internet access offering voice and=20 high-speed data with one telephone line. WorldCom previously acquired = MFS=20 Communications and UUNET and will oversee the world=3Ds biggest Internet = network.=20

1998
Microsoft co-founder Paul Allen acquires = Dallas-based=20 Marcus Cable Partners for $2.8 billion, and three months later, Charter=20 Communications for $4.5 billion. Marcus closes its corporate offices and = the=20 combined MSO is headed by Charter executives Jerald Kent, CEO, and = Chairman,=20 Barry Babcock, in St. Louis. By year-end, Century Communications Corp. = declares=20 it is exploring strategic alternatives, including selling its systems, = after=20 talks end with Allen=3Ds Vulcan Ventures.

The Cable Industry = commemorates=20 50 years with a number of events and activities. The Cable Center = inducts the=20 first six members of the Hall of Fame at the NCTA Convention in Atlanta, = GA in=20 May. By year end, The Center announces it has raised $50 million in a = capital=20 campaign to build a 75,000 square foot facility on the campus of the = University=20 of Denver.

Mergers again dominate the year=3Ds activity, headed = by the=20 announcement of a $48 billion AT&T/TCI merger. AT&T also pays = $10=20 billion for an alliance with British Telcom and buys Teleport = Communications=20 Group from TCI, Comcast and Cox for $10.3 million to give it direct = access to=20 local phone customers using TCG fiber network in 60 cities. =

WorldGate=20 announces the first commercial deployment of its Internet/television = service on=20 cable systems in Charter Communications=3D Newton, CT system and = Prestige Cable=3Ds=20 system in Mooresville, NC., collectively passing more than 80,000 = households.=20

Public Affairs executives from MSOs form The Cable Broadband = Forum for=20 the purpose of convincing the general public that high-speed Internet = access is=20 better through cable than telephone lines.

Advertising spending = on=20 subscription video services rises 17.67% in 1998 to $9.4 billion. Cable = network=20 ad revenue rises over $1 billion to $6.9 billion. Local advertising = rises to=20 $2.1 billion and advertising on regional sports networks increases to = $305=20 million. Kraft Foods and TCI announce a multi-million dollar agreement = to run=20 digitally inserted ads in 20 metropolitan markets to develop customized = ad=20 applications. Eventually, ads could be targeted to neighborhoods, = individual=20 homes and perhaps specific TV sets. Time Warner Cable pulls out of the = New York=20 Interconnect, ending a one-stop shop for spot cable time in the largest=20 television market.

Turn key ISPs proliferate. Leading the pack = is High=20 Speed Access Corp. (HSA Corp.), which merges with CATV.net and gets an = infusion=20 of $20 million from Paul Allen=3Ds investment ventures arm, Vulcan = Ventures Inc.=20 Other leading ISPs are SoftNet=3Ds ISP Channel, Online System Services, = which=20 renames its service i2u, Internet Ventures, Inc., and Convergence.com=20 Corporation. Paul Allen also invests $10 million in the interactive = programmer,=20 Wink Communications Inc., and $54 million for a 33% stake in ZDTV, the = cable=20 network focused on computers and the Internet.

RCN Corp. shows = its=20 competitiveness by building OVS systems on top of Time Warner and = Cablevision in=20 New York City and Boston, and signs a venture with Potomac Electric = Power=20 (PEPCO) to build cable, telephone and Internet services under the name = Starpower=20 Communications.

The National Cable Television Association = announces an=20 industry commitment to provide a free cable modem and Internet access = service to=20 elementary and secondary schools and libraries in markets where = high-speed data=20 service is offered by the local cable companies. By year-end, more than = 2,500=20 schools and 700 communities are connected to the Internet through cable = modems.=20 The millions of dollars collected in fees from telecommunications = companies to=20 subsidize Internet hookups for schools and libraries, but does not = disburse the=20 funds.

The Wireless Cable Association replaces +Cable+ with=20 +Communications+ in its name to reflect member activity to deliver = broadband=20 services, including Internet services.

Citing technical issues, = market=20 dynamics and new competition, Bell Atlantic declines to pursue video = deployments=20 beyond its Dover Township, NJ test market, pulls out of a $100 million=20 investment in the CAI Wireless as it shifts attention to DSL deployment. =

MMDS operator CAI Wireless files for Chapter 11 bankruptcy = protection=20 July 30. RBOCs BellSouth and GTE stick by their initial MMDS = investments.=20 BellSouth launches its 160 channel, $36.99 digital-wireless-television = service=20 in Orlando, FL. under the +BellSouth presents Americast+ brand. =

Time=20 Warner and MediaOne Group combine their data venture operations and move = Road=20 Runner headquarters to northern Virginia. With a $425 million investment = from=20 Microsoft and Compaq, the service passes 180,000 subscribers for = high-speed data=20 services, including a 37 story high rise in Jacksonville, FL. = Cablevision=20 launches Optimum Online, cable modem service for residential = subscribers.=20

@Home, TCI=3Ds high-speed Internet access service, signs up more = than=20 300,000 customers with major cable affiliates, TCI, Bresnan, Cox, = Comcast,=20 Cablevision, Century, Intermedia, Jones, Rogers and Shaw. It also = targets=20 smaller cable systems to compete with turnkey ISP vendors. Demand is so = strong;=20 incidents of congestion from too many simultaneous users are reported. = The=20 business division, @Work, is also successfully marketed, signing an = agreement=20 with PC Connection, a computer reseller, to provide corporate customers = with=20 Internet connectivity.

@Home is the first high-speed Internet = service to=20 announce a deal with Compaq to bundle access to @Home on Presario = Internet=20 personal computers. Dell Computer Corp. announces alliances with telcos = to=20 provide DSL-compatible equipment to consumers and with @Home to = coordinate=20 installing the cable-delivered high-speed service in custom-built = computers=20 after purchase.

The only operating LMDS provider, CellularVision = of New=20 York, is financially strapped and declines to participate in the 127 = round=20 auction for LMDS spectrum in nine markets. The auction still raises = $578.6=20 million from WNP Communications, NEXTBAND Communications, Winstar LMDS, = Baker=20 Creek Communications, Cortelyou Communications and other companies = anxious to=20 offer voice, video and data using the wireless technology.

The = myriad of=20 mergers, acquisitions and reorganizations result in a number of = upheavals for=20 long-time industry executives. Among the highest profiles leaving their=20 positions are Kay Koplovitz, the founding Chairman and CEO of USA = Networks, and=20 Geraldine Laybourne, who leaves Disney/ABC Cable Networks. Other = executives=20 separated from their long-time positions include Jim Heyworth, = Viewer=3Ds Choice=20 CEO, Doug Herzog, Comedy Central President, Rich Cronin, President of = Nick at=20 Nite/TV Land, Doug McCormick, who headed Lifetime, Erica Gruen of TV = Food=20 Network, and Lee Masters, CEO of E! On the operator side, Marcus Cable=20 executives, Jeff Marcus and Lou Borrelli leave long-time positions.=20

Women=3Ds Pay comes up short. A salary survey conducted for the = Women in=20 Cable & Telecommunications Foundation indicates women in the = programming=20 industry are paid about 18% less than men in the same position, while = women=20 working for video distribution services earn on average 15% less than = their male=20 counterparts.

Comcast Corp. pays $500 million for Bell = Canada=3Ds 30%=20 stake and then picks ups its option early to take control of Jones = Intercable,=20 by acquiring Glenn Jones=3D 2.9 million shares for $200 million in a = deal=20 scheduled to close in the first quarter of 1999. Comcast also purchases = cable=20 systems near Washington D.C. and in Chicago from Prime Cable, making a = total of=20 1.1 million subscribers in the Baltimore-Washington area, including the=20 properties Prime purchased from telco SBC.

In the first six = months,=20 leading cable brokerage firm, Daniels & Associates, reports a record = of 48=20 transactions with an aggregate value of $2.2 billion.

And the = telcos=20 continue to consolidate. SBC Communications acquires Southern New = England=20 Telecommunications Corp. for $4.4 billion, and Ameritech Corp, pending = regulator=20 approval, for $79 billion. Bell Atlantic purchases GTE. =

Broadcast HDTV=20 begins. 40 terrestrial broadcast television stations in 22 markets = voluntarily=20 launch digital programming in November. Televisions capable of receiving = broadcast digital signals cost $5,000 - $10,000. The potential of = applying must=20 carry rules to the new High Definition TV signals sparks intense = friction=20 between broadcasters and the cable industry. Groups representing both = industries=20 disagree about technical issues. Cable fights against any forced = carriage of any=20 duplicated signals in addition to a broadcaster=3Ds analog signal, while = broadcasters argue that cable will be a bottleneck and without extending = must-carry to digital signals, many stations will disappear. =

Cable=20 commits to telephony. By year=3Ds end, 200,000 lines of cable telephone = service=20 are offered via newly rebuilt, broadband HFC plants. Companies taking = the plunge=20 in at least one market are Cablevision Systems Corp., Comcast Corp., Cox = Communications Inc., Jones Communications Inc., MediaOne Group Inc., = Rifkin=20 & Associates, Tele-Communications, Inc., and Time Warner, Inc. =

Cable=20 modems are hot and consumer demand is high. In one day, CompUSA sells = its entire=20 inventory of General Instrument modems used in Daniels Cablevision=3Ds = San Diego=20 system. MediaOne Express subscribers in Massachusetts and New Hampshire = buy=20 cable modems for $250 in Circuit City retail stores, as MediaOne is the = first=20 MSO to launch a retail initiative with a national retailer. @Home = announces an=20 alliance with chain retailer CompUSA to sell @Home branded = pre-installation=20 kits. Lack of modem certification delays widespread retail sales of = cable=20 modems. Between 400,000 and 500,000 pre-DOCSIS standards cable modems = are=20 installed by the end of 1998, about two percent of the homes passed. =

In=20 a d=E9j=E0 vu scenario, EchoStar Communications ends a $5 billion = breach-of-contract=20 lawsuit by signing a new deal to buy the satellite TV assets of News = Corp. and=20 MCI WorldCom Inc. for $1.25 billion of stock, (37% of EchoStar.) The = deal is=20 announced following the dissolution of the PrimeStar/News Corp. alliance = that=20 was created in June 1997, just after the first EchoStar/ASkyB alliance=20 dissolved. The second deal gives EchoStar Chairman Charlie Ergen more = control=20 over the company with 40% of the equity and 87% of the voting interest. = EchoStar=20 will control over 50 of the 96 full-CONUS DBS frequencies available as = well as=20 two high-power satellites ready to launch, and a new satellite uplink = center in=20 Gilbert, AZ. It plans to launch local broadcast network channels to half = the=20 country, and provide high-definition TV and data services through a = single,=20 small dish.

DBS providers reportedly pass the 10 = million-subscriber mark=20 at the end of October and mergers change the competitive landscape. = DirecTV=20 strengthens its position as the largest provider, when its parent = company,=20 Hughes Electronics Corp., buys USSB=3Ds two million customers for $1.3 = billion.=20 Using a free dish offer, EchoStar grows by nearly two million customers = and=20 promises to be stronger with the additional transponders from News = Corp./MCI=20 deal. The ailing PrimeStar has over 2.3 million customers and even = C-Band has=20 100,000 more subscribers than in June 1994 when DBS debuted, though it = dropped=20 under 2 million subscribers for the first time.

Digital Cable = exceeds=20 expectations, growing to at least 1.5 million households by year-end. = The=20 average system offers an optional tier with 57 video channels and 24 = audio=20 channels. The leader, TCI=3Ds Headend in the Sky, with over 1.2 million = customers=20 in TCI and non-TCI systems, increases to 130 video channels and 43 audio = services which it provides to 60 MSOs in 700 systems. Jones Intercable = launches=20 its first digital cable service, ImpacTV in Pima County, AZ. Time Warner = Cable=20 unveils its Athena service offered through +Pegasus+ digital set-top = boxes,=20 which it promises to be an advanced version of TCI=3Ds HITS and Digital = Cable=20 service.

Basic cable growth slows to 1.3% on an annualized = basis. MSOs=20 concentrate on gaining incremental revenue from existing customers by = selling=20 more premium channels, tiered packages and digital service.

PCS = appears=20 to be no longer a central component of cable strategic plans. Sprint = takes its=20 wireless division public, and assumes full ownership of Sprint PCS, = exchanging=20 the interests of part owners, TCI, Comcast Corp., and Cox = Communications, Inc.=20 for low-voting shares of the tracking stock.

Cablevision Systems = Corp.=20 purchases The Wiz, a New York area retail electronic store chain and = hopes to=20 maximize potential revenues with the purchase of Clearview Cinema Group = which=20 owns movie theaters. Cablevision will offer events from its famed Radio = City=20 Music Hall and Madison Square Garden facilities as part of a = subscription/PPV=20 package, including concerts, and signature events as Radio City=3Ds = famed=20 Christmas show and Madison Square Garden=3Ds stage productions. =

Filling a=20 void created by AT&T selling its 2.5% stake in DirecTV in December = 1997 for=20 $161.8 million, the DBS service signs multiyear marketing agreements = with=20 telephone companies GTE Corp., Bell Atlantic and SBC Communications, and = MMDS=20 operator, Heartland Wireless Communications.

TCI=3Ds United = Video=20 Satellite Group Inc. announces the acquisition of TV Guide = magazine and=20 related News Corp. assets, including The Prevue Channel, the leading=20 analog-distributed guide channel, for $2 billion. TV Guide previously = acquires=20 TVSM Inc. for $75 million cash and launches a full sized version of = Total=20 TV. TVSM also publishes the monthly Cable Guide and = See (a=20 guide for DirecTV subscribers) programming guides.

Telcos, = including=20 Bell Atlantic, Bell South Corp., GTE Corp., SBC Communications and US = West begin=20 deploying DSL technology to launch data services in several markets to = compete=20 with cable modems. BellSouth=3Ds service is called FastAccess DSL. US = West=20 launches cable service over its existing phone lines in the Phoenix, AZ = market.=20

Ameritech holds 90 cable wireline franchises in five states, = including=20 14 in the Chicago area and 35 in Ohio. It reluctantly releases = subscriber=20 information: 100,000 customers in 39 cities and towns.

Former = Bell=20 Atlantic Video Services customers in Toms River, NJ, are left without = service=20 when the telco shuts down its wireline operations at the end of 1998 in = favor of=20 selling DBS packages. The RBOC spent $70 million to build the network = and=20 delivers FutureVision service to 2,600 customers before it ceases = operations.=20

1999
The industry=3Ds financial growth is fueled by = mergers and=20 anticipation of new services. The 10 publicly traded MSOs see their = stocks rise=20 an average of 30 percent during the year. Though less than half of the = 80=20 percent increase in 1998=96and no where near the dizzying heights of = Internet=20 stocks=96it marks the third straight year of increases in stock value. = Daniels=20 & Associates, the brokerage firm, reports a record $2.3 billion in=20 transactions in the first half of the year, surpassing last year=3Ds = record first=20 half of $2.2 billion.

AT&T enters the cable business on = March 9 by=20 closing on the $43 billion stock and cash deal to acquire TCI. The = company,=20 AT&T Broadband & Internet Services, initially brands its = services as=20 AT&T Cable Services, AT&T Digital Cable and AT@T @Home. The = company also=20 tries to close on its acquisition of MediaOne Group, but still hasn=3Dt = met=20 regulatory approvals by year end. The value per subscriber of the=20 AT&T-MediaOne deal is the reportedly the highest of all major = transactions,=20 at $4,632 per subscriber.

The DBS Players are reduced to two. = DirecTV=3Ds=20 parent company, Hughes Electronics, acquires medium-power Primestar = Inc.=3Ds 2.3=20 million subscribers and assets for $1.82 billion including 11 high-power = satellite frequencies from Tempo Satellite Inc. DirecTV, with a combined = 7.1=20 million customers, is the third largest provider of video services, = trailing=20 only AT&T and Time Warner. DirecTV also buys out USSB in May. The = other=20 remaining major DBS company, EchoStar, picks up the DBS assets of News = Corp and=20 MCI WorldCom, giving up only 2.5% of voting rights and 14.6% of diluted = equity=20 in a $1.25 billion deal. The company surpasses 3 million subscribers = only nine=20 months after reaching the two million mark. Together, DBS providers add = more=20 than three million subscribers by year end for a total of over 11 = million homes.=20

The Satellite Home Viewer Improvement Act is signed by President = Clinton=20 on November 29 and creates opportunities for DBS providers to beam local = broadcast signals back to their home markets. DirectTV and EchoStar = begin=20 launching service to major cities. By year end, four local broadcast = network=20 channels and a national PBS feed are available in 17 DirecTV markets and = 18=20 EchoStar markets, exceeding their initial promises. The Act further = clouds=20 must-carry and retransmission consent negotiations with broadcasters.=20

The FCC=3Ds 6th Annual Report on Competition in Video = Markets notes=20 cable=3Ds share of the multichannel market drops 3% to 82% and that it = will=20 continue to erode with DBS=3D new local-in-local capabilities. Overall, = the=20 multichannel pie increases from June 1998 to June 1999 as DBS=3Ds market = share=20 grows to 12.5% and cable actually increases 2% to 66.7 million customers = because=20 the multichannel subscriber households increases 5% to 80.9 million. The = NCTA=20 releases a report in mid-year revealing 7 out of every 10 new customers = choose=20 DBS or another multichannel video competitor over cable.

America = Online,=20 Inc. commits $1.5 billion to DirecTV and DirecPC with plans to jointly = promote=20 the interactive-TV service AOL TV, AOL Plus, a high-speed internet = service for=20 Personal Computers, and the HNS +DirecDuo+ product which combines feeds = for=20 DirecPC and DirecTV services through a single dish. The current = telephone-return=20 path will be replaced with a two-way connection via Ku-band satellites.=20

By year end, there are more than 1.6 million subscribers to = cable-based=20 high-speed data services in the U.S. and Canada. High-speed wireless = technology=20 begins to surface, competing with cable=3Ds wired broadband technology.=20

The telephone companies=3D high-speed data technology, DSL, = takes off and=20 reaches 500,000 customers in six months. DSL technology is limited = because=20 customers must be within three miles of a central office. =

Charter=20 Communications raises $3.7 billion in the fourth largest initial public = offering=20 of all time. The company spends $12 billion on acquisitions, including=20 InterMedia Partners, Rifkin and Associates, Time Warner Fanch = Communications,=20 Falcon Communications, Bresnan Communications and Avalon Cable, making = Charter=20 the fourth largest US cable operator with 6.2 million customers. Charter = Chairman Paul Allen also jolts the industry when his Vulcan Ventures = purchases a=20 $1.65 billion stake in RCN Corp., the overbuilder actively constructing = advanced=20 fiber-optic networks in the Northeast and California.

Other MSOs = acquiring cable systems include Adelphia which spends $11.6 billion on = six=20 acquisitions that add 3.2 million customers for a total of 5.3 million=20 customers, including Century Communications and Harron Communications. = Comcast=20 doubles its subscriber base from 4.6 million to 8.2 million. Though = Comcast=20 loses the fierce bidding for MediaOne to AT&T, it gets a $1.5 = billion=20 breakup fee plus the ability to acquire up to 1.2 million customers from = AT&T, among other considerations. Comcast also completes its $700 = million=20 purchase and then doubles its equity interest in Jones Intercable. = Through=20 strategic acquisitions, Comcast creates the largest continuous cluster = on the=20 eastern seaboard from metro Washington D.C. north to southern New = Jersey. Cox=20 Communi-cations acquires 485,000 subscribers from AT&T for $2.7 = billion,=20 plus systems from TCA Cable, Media General and Gannett=3Ds Multimedia = Cablevision,=20 among others, to solidify its position as the fifth largest MSO. The = average=20 value in these deals is estimated at $3,903 per subscriber, up from = $2,877 per=20 subscriber in 1998 and from the 10-year low of $1,753 per subscriber in = 1992.=20

Digital cable deployment takes off, with an estimated 5.1 = million=20 digital cable subs by the end of the year.

The faces of cable = change=20 from the explosion of new interactive services and the effects of = consolidation.=20 Among other signs the industry is changing, Leo Hindery, former TCI = president=20 and CEO, abruptly departs from his position atop AT&T B&IS in = October,=20 five months after the merger is complete. He later surfaces with the = Internet=20 company, GlobalCenter, Inc. and its parent company, and U.S. West = suitor, Global=20 Crossing, Ltd.

While RBOC interest in wireless video technology = slows,=20 long distance rivals acquire wireless MMDS operators. Sprint spends $1 = billion=20 to buy American Telecasting, People=3Ds Choice TV Corp., Videotron = USA/Transworld=20 Telecommunications, Inc., and WBS America. Sprint will use the MMDS = assets to=20 launch high-speed data services. MCI WorldCom joins with Vulcan Ventures = in=20 investing $300 million each in Metricom, and separately, spends another = half=20 billion for CAI Wireless System Inc., Wireless One, and Prime One, to = bring=20 MCI=3Ds wireless coverage to about 50 percent of major markets. =

AT&T=20 Corp. refocuses its wireless strategy when its initial plans to work = with other=20 cable operators to sell telephony over cable falter. The new strategy = positions=20 its fixed wireless operations to complement its cable strategy and = offers market=20 share in rural areas without other cable operators.

High-profile = mergers=20 continue in all sectors of the business. @Home merges with Internet = portal=20 Excite, Inc. for $7.2 billion. The RBOCs also consolidate as Qwest woos = U S West=20 against offers from Global Crossing for an announced $48.5 billion = merger. Long=20 distance companies Sprint and MCI WorldCom announce merger plans in = October.=20

By year end, high-speed Internet service Excite@Home has 1.4 = million=20 subscribers. MediaOne Express, MediaOne=3Ds high-speed service, changes = its name=20 to MediaOne Road Runner and hopes to reach 500,000 customers by year=3Ds = end.=20

Another major player competing with Excite@Home, RoadRunner, = WebTV=20 Networks, America Online Inc. and other Internet TV players is the joint = venture, Broadband Partners. Created by Vulcan Ventures, Charter = Communications,=20 Go@Net Inc. and High Speed Access, the service is designed to develop = high-speed=20 +broadband portal services+ for TV viewers through digital set-top = boxes.=20

Internet Ventures Inc. (IVI), an Internet Service Provider, = attempts to=20 gain access to broadband cable systems under leased access channel = requirements.=20 IVI unsuccessfully petitions the FCC that video streaming over the = Internet=20 meets the definition of +video programming+.

Interactive = cable-TV=20 services continue to gain momentum WorldGate and Wink Communications = head the=20 list with initial public offerings. General Instrument unveils SURFview, = a TV=20 set-top that provides Internet access capabilities at $99 using = WorldGate=3Ds=20 Internet Over TV application. It is available to current WorldGate = affiliates=20 and is targeted to customers who can=3Dt afford PCs and/or want multiple = Internet=20 conduits at home.

Video streaming technology is hot, putting = additional=20 pressure for capacity on cable set-tops and high-speed modems. =

Broadcast=20 Digital Television sputters, with 109 stations providing broadcast HDTV = signals=20 to just 24,631 TV sets nine months after the first station begins = sending=20 digital signals. DBS providers Echostar and DirecTV carry HDTV feeds of=20 HBO and plan to add Showtime. Industry projections = forecast fewer=20 than 5% of households will be watch DTV by 2005. The FCC=3Ds original = was plan to=20 convert the US to digital TV by 2006.

The first two quarters of = 1999=20 generate $4 billion in advertising revenue for cable net-works, a 29% = jump=20 compared to the first six months of 1998. Total ad revenue for the big = four=20 broadcast networks is $16.27 billion in 1998 and is expected to be the = same for=20 1999.

The trade association, CATA, closes its doors June 30 a = joint=20 decision of CATA=3Ds board and the National Cable Television = Association=3Ds board.=20 The top 30 MSOs belong to both organizations. The Small Cable Business=20 Association changes its name to American Cable Association to stop = confusion=20 with the leading satellite-industry association, SBCA. The ACA has 300 = members=20 serving about 3.2 million cable subscribers.

The National Cable=20 Television Center and Museum breaks ground on its 74,000 square foot = facility on=20 the campus of the University of Denver at the end of July. More than 200 = industry leaders from all over the country attend the ceremonies. The = building=20 is scheduled to open in the first half of 2001.

Engineering
1995
Cable modems emerge as a top priority = for the=20 industry. Comparisons between copper wire phone lines at 14.4 kps, ISDN = phone=20 lines at 128 kps and coaxial cable at 4,000 kps dramatically illustrate = the=20 1,000 times faster speed of cable.

U S West begins its analog = and=20 digital and analog video dial tone (VDT) test in Omaha.

Cable = operators,=20 including Time Warner, begin testing telephony in cable systems.=20

1996
Bell Atlantic launches the first commercial video = dial=20 tone network in Dover Township, delivering voice, data and video = elements. Each=20 neighborhood node sends signals to an optical network unit (ONU). There, = voice=20 service is split off and sent to a twisted pair wire and video is = converted to=20 electrical signal and carried into the home via coaxial cable.

Cable enters the high-speed online data business when = Tele-Communications,=20 Inc. rolls out its @Home service in San Francisco and Time Warner Cable = launches=20 Road Runner in Akron and Canton Ohio in September. By year end, six of = the 10=20 largest MSOs launched commercial cable modem service and two more = announce plans=20 for high speed service. Over 100,000 modems are deployed by cable = systems in=20 1996, including dial up modems.

TCI launches Headend in the Sky = and=20 places digital boxes in its Hartford, Connecticut system. Other MSOs, = including=20 Cox, Comcast, Time Warner and Canada=3Ds Shaw Cable Communications, move = forward=20 toward the digital arena with their own approaches.

Sprint = Spectrum=20 rolls out digital wireless PCS technology service in the Washington,=20 D.C.-Baltimore market.

1997
SNET is forced to tear the = HFC=20 plant off the poles in its Stamford, Conn. video trial of 2,009 = customers in=20 order to redesign its approach to powering the system. SNET=3Ds failed = attempt to=20 change national electrical safety codes will cost it at least $250,000 = to remove=20 the violating cable and a delay of several months. SNET also launches = cable=20 service in Unionville, Conn.

CableLabs takes an active role in = bringing=20 manufacturers and operators together to develop effective, interoperable = technical standards for equipment. The two projects are Multimedia Cable = Network=20 System (MCNS)/Data Over Cable Service Interface Specifications (DOCSIS)=20 certification process for cable modems and the OpenCable project. = OpenCable=20 should lead to open, interoperable, digital set top boxes costing under = $300,=20 marketed directly to customers. Local operators would sell cards for = subscribers=20 to activate the boxes.

Dense Wave Division Multiplexing (DWDM) = is=20 originated to push advanced offersings, including high-speed data, over = existing=20 fiber optic networks, thus saving the cost of tearing out plant or = adding=20 fibers. This technology multiplexes several wavelengths of light into = one=20 optical fiber at 1550 nm to minimize loss. The result incereas the = network=3Ds=20 capacity many times over.

1998
CableLabs formally = celebrates=20 its 10th Anniversary with a celebration in June at SCTE=3Ds Cable-Tec = Expo held in=20 Denver. CableLabs also has an extremely busy year leading the industry = through=20 the rigorous certification program to standardize cable modems for = official=20 DOCSIS certification. Only one cable system, Cogeco Cable, Inc. in = Ontario,=20 Canada began deploying DOCSIS technology using Samsung and Cisco = equipment as=20 part of CableLabs trial.

CableLabs also spearheads agreements = from a=20 dozen companies to participate in a royalty-free pool for intellectual = property=20 rights in developing PacketCable=E4 inter-operable interface = specifications.=20 Products meeting these requirements will allow cable operators to use = Internet=20 protocol (IP) technology to deliver telephone calls, video-conferencing = and=20 other advanced packet voice and video services over two-way cable = networks.=20

The cable and consumer electronics industries reach agreement = over the=20 IEEE (Institute of Electrical and Electronic Engineers) 1394 +firewire+ = standard=20 to promote compatibility between digital set top boxes and broadcast = digital TV=20 signals. (The name implies the speed of data sizzling over a wire is = fast enough=20 to set the wire on fire). Though not a final answer, it is a first step. = An=20 informal copy protection technology working group identifies the 5C = standard for=20 digital transmissions which helps CableLabs draft final OpenCable = specifications=20

Cable systems continue to upgrade, investing nearly $8 billion = in=20 infrastructure improvements and activating reverse path for two-way = services=20 like high-speed data and telephony. Between 40 and 65 percent of U.S. = plant is=20 able to offer two-way services.

A cross-industry group, Advanced = Television Enhancement Forum (ATVEF) drafts enhanced TV specifications, = an=20 interactive format that facilitates blending the World Wide Web into TV = and TV=20 into the Web.

TCI forges agreements with Sun Microsystems for = the=20 PersonalJava software platform and Microsoft for its Windows CE = operating system=20 to be used in digital set top devices. It also selects Microsoft=3Ds HDO = high-definition TV format to incorporate in TCI OpenCable=E4 boxes, = meaning=20 consumers could see better digital pictures and programs without having = to buy a=20 $6,000 TV set.

1999
Time Warner plans to launch=20 high-definition programming for digital customers in Tampa, FL. = Customers will=20 watch Home Box Office=3Ds HDTV programming in upgraded areas with 256=20 quadrature-amplitude-modulation (QAM)transport delivered through = Scientific=20 Atlanta=3Ds Explorer 2000 set-top boxes. The pilot project is in = preparation for=20 eventual FireWire standardization compliance by CableLabs and builds on = TWC=3Ds=20 pass-through of HBO and CBS signals in New York City.

The = International=20 Telecommunications Union gives final approval to the G.Lite standard = backed by=20 major telephone companies and computer-industry players. This technology = is an=20 easily deployed, high-speed data product using existing phone lines and = targeted=20 for mass retail sales. G.Lite specifications are at 1.5 megabits per = second for=20 downstream service and 612 kilobits per second for upstream = transmission,=20 compared with 8 mbps upstream and 1 mbps for +full+ DSL.

The = DOCSIS=20 project at CableLabs enters its final phase of developing a third = generation of=20 cable modems that may lower costs to less than $100 per modem by sharing = some=20 functionality of the user=3Ds PC or other network appliance. The second = generation=20 technology, DOCSIS 1.1 specification, supports IP telephony. The third=20 generation units, CPE-controlled cable modems (CCCM), are expected to be = introduced by next Christmas.

CableLabs selects the IEEE 1394 = FireWire=20 standard as the set-top box interface for future home networks. The = standard was=20 originally ratified in December 1995 and more than 200 manufacturers = have IEEE=20 1394 products. A bi-directional interface, FireWire was designed for use = by=20 average consumers to carry mulitple independent streams of digital video = and=20 digital audio. For home network use, FireWire is easy to use and nearly = 50 times=20 faster than the data rate of USB (Universal Serial Bus). =

PacketCable=20 goes live when Lucent and Motorola launch cable telephony over IP = (Internet=20 Protocol) in Union, NJ as the first to comply with PacketCable 1.0=20 Specifications. Charter Communications also launches IP telephony in its = Fitchburg, WI system with Cisco DOCSIS compliant equipment. AT&T = tests=20 broadband IP telephony in eight markets. Industry projections are to = have=20 400,000 to 500,000 IP subscribers by Christmas 2000.

Diva is = issued a=20 patent for the +system-stripping+ architecture it uses for its VOD = server. Diva=20 has exclusive rights to 15 issued patents and two allowed applications = on Video=20 on Demand in the U.S.

DirecTV launches its 1R satellite for a = 101 degree=20 high-power DBS orbital slot to facilitate offering local broadcast = stations from=20 up to 20 local markets. After technical and weather delays, EchoStar=20 successfully launches a fifth satellite, EchoStar V which will operate = from 110=20 degrees west longitude, which EchoStar acquires from American Sky = Broadcasting=20 Inc., the ill-fated joint venture of MCI Worldcom Inc. and News Corp. =

Judicial/Legislative
1995
A number of states repeal laws = banning=20 cable operators from offering telephony services. =

1996
The=20 Telecommunications Act of 1996 passes Congress and is signed into law on = February 8, signaling a new era in U.S. communications. It immediately=20 deregulates rates for small cable systems. It removes entry barriers and = requires RBOCs to open up their markets to competition. AT&T begins = to offer=20 local telephone serviceand the RBOCs prepare plans to offer long = distance=20 services.

U.S. District Judge Harold Greene officially = terminates the=20 consent decree which governed the 1984 breakup of the Bell System. =

A=20 federal appellate court upholds rate regulation under the 1992 Cable Act = and=20 finds that the Act did not violate cable=3Ds First Amendment rights. It = holds that=20 the FCC=3Ds rule making in certain instances under the 1992 Act was = flawed.=20 (Time Warner Entertainment v. FCC, 56 F.3d15 (D.C. Cir.) cert. = denied, 116S. Ct. 911 (1996))

A Delaware state court judge = finds=20 against U S West in its suit to prevent Time Warner=3Ds purchase of = Turner=20 Broadcasting, Inc. FTC approves Time Warner=3Ds purchase of Turner = Broadcasting.=20

The U.S. Supreme Court holds that the First Amendment is = violated by=20 sections of the 1996 Telecommunications Act--1) requiring operators to = separate=20 +patently offensive+ material on one channel to block the channel and to = unblock=20 it within 30 days of a customer=3Ds written request and 2) allowing = operators to=20 ban pornographic material on public access channels. In the same case, = the Court=20 upholds a provision permitting operators to prohibit pornographic = programming on=20 leased access channels ( Denver Area Educational Telecommunications=20 Consortium, Inc. v. FCC 116 S. Ct. 2374.)

1997
The = Supreme=20 Court, in a unanimous decision, affirms a Wilmington, Del. court = decision to=20 deny a preliminary injunction of Section 505 of the 1996 = Telecommunications Act.=20 Playboy and Spice appealed the provision which requires cable operators = to fully=20 scramble the video and audio signals of adult channels or offer the = programming=20 only between 10 p.m. and 6 a.m. (Playboy Entertainment Corp v. United = States, 117 S. Ct. 1309)

In a 5-4 ruling that surprises the = cable=20 industry, the Supreme Court upholds must carry, in spite of swing vote = Justice=20 Stephen Breyer=3Ds note that it +extracts a serious First Amendment = price.+ It=20 also solidifies the broadcast industry=3Ds grip on one-third of = cable=3Ds analog=20 signal capacity. The implications for how the rules apply to digital = services,=20 especially DBS, are unclear. (Turner Broadcasting System v. FCC, = 117 S.=20 Ct. 1174)

A federal appellate court upholds a preliminary = injunction=20 that prevented New York City from using government access channels on = Time=20 Warner Cable systems to offer general news and business news cable = networks.=20 (Time Warner Cable v. Bloomberg LP, 1997 US App. Lexis 16283 (2d = Cir.))=20

A federal court affirms the town of Sturgis, KY=3Ds decision not = to renew=20 the cable franchise with Union CATV, because the operator lacked the = facilities=20 to meet the community=3Ds needs. The decision solidifies cable=3Ds right = to take=20 franchise-renewal disputes to court. (Union CATV, Inc. v. City of=20 Sturgis, 107 F.3d 434 (6th Cir. 1997)) =

1998
Broadcasters=20 win over DBS interests on July 14, when a US District Court in Miami = issues an=20 injunction ordering PrimeTime 24, a wholesale distributor of satellite = TV=20 programming, to cut-off 1.2 million customers illegally receiving CBS = and Fox=20 network signals after March 11, 1999. If a household can get a Grade B = off-air=20 broadcast signal clearly at least 50% of the time, it is ineligible to = receive=20 network signals via satellite. In December, the Miami Court issues a = permanent=20 injunction against PrimeTime 24 from delivering illegal distant signals, = ensuring that Congress must change the Satellite Home Viewer Act (SHVA) = to avert=20 DBS customer disruption caused by the loss of network signals. (ABC, = Inc. v.=20 Primetime 24, 1999 U.S. App. LEXIS 14979)

EchoStar = Communications=20 Corp. files a class-action suit in a Colorado federal court against ABC, = CBS,=20 NBC and Fox broadcast networks asking the court to declare its local and = distant=20 signals are legal under the SHVA. EchoStar also petitions the FCC, = asking them=20 to rewrite part of the SHVA. Broadcasters oppose the plan, fearing they = would=20 lose advertising if DBS offers distant network signals in place of local = network=20 affiliates. The FCC declines to act, citing lack of statutory authority = under=20 the SHVA to prevent customers involved in the court cases from losing = the=20 services. The FCC does, however, revise its rules to simplify how Grade = B=20 contours are determined. (DirecTV, Inc. v. FCC, 110 F.3d 816 = (D.C. Dir.=20 1997))

A panel of three federal judges in Delaware strikes down = as=20 unconstitutional Section 505 of the Communications Decency Act of 1996 = which=20 requires cable operators to fully block or scramble channels primarily = dedicated=20 to sexually explicit programming or carry such channels only during = times when=20 children are unlikely to view it. The Court holds Section 505 violates = the First=20 Amendment because a less restrictive alternative is available, namely = Section=20 504, which requires systems to block channels for individual customers = upon=20 request. The government appeals the decision to the Supreme Court. = (Playboy=20 Entertainment Group, Inc. v. United states of America, 30 F. Supp. = 2d 702=20 (D. Del. 1998))

The Iowa Supreme Court hands = Tele-Communications, Inc. a=20 temporary victory in the ongoing battle against municipal overbuilds. It = rules=20 that Section 23A.2 of the Iowa Code prohibits municipalities from = operating=20 telephone systems as public utilities, as a 1993 law allowing cities to = offer=20 telecommunications services, including cable, did not extend to = telephone. The=20 decision overturns a lower-court ruling, finding the town of Hawarden is = precluded by statute from offering local telephone service to residents. = (Iowa Tel. Association v. City of Hawarden, 589 N.W. 2d 245 (Iowa = 1999))=20

Cablevision of Boston sues Boston Edison and RCN in Federal = Court for=20 building a commercial telecom network in Boston using electric utility=20 regulations, but not fulfilling the same requirements and burdens as the = City=20 applies to cable operators. The suit charges the City approved = retroactive=20 permits for the initiative so Edison and RCN could avoid delays and = costs, thus=20 violating the Telcom Act=3Ds Section 253 which requires local = authorities to be=20 +competitively-neutral and non-discriminatory+ in their rights-of-way = policies.=20 (Cablevision of Boston, Inc. v. Public Improvement Comm=3Dn of = Boston, 38=20 F. Supp. 2d 46 (D. Mass. 1999))

With the increase of copyright = payments=20 of $.27 per signal for DBS companies, up from $.06, the U.S. Copyright = Office=20 income from DBS providers for the first half of 1998 is $50 million, = compared to=20 $17 million in the same period in 1997.

In the first decision to = test a=20 U.S. Supreme Court ruling that lets operators ban indecent content on=20 leased-access channels, a U.S. District Court rules that Time Warner = didn=3Dt=20 violate the first amendment when it banned three episodes of a = leased-access=20 program filmed at a Rochester strip club. (Loce v. Time Warner=20 Advance/Newhouse Pshp., 1999 U.S. App. LEXIS 13179))

The = City of=20 Austin, TX files a lawsuit against SBC=3Ds Southwestern Bell Video = Services,=20 alleging the company is a +cable operator+ and therefore should pay = franchise=20 fees. (City of Austin v. Southwestern Bell Video Services, 1998 = U.S.=20 Dist. LEXIS 16332)

The 5th Circuit Court of Appeals rules in = September=20 the 1996 Telecom Act=3Ds special provisions that deny telco entry into = long=20 distance service are constitutional. (City of Dallas v. FCC, 165 = F.3d 341=20 (5th Cir. 1998).

1999
Legislation introduced to push = back the=20 March 31 deadline for FCC to cease regulating cable prices on expanded = basic=20 cable services fails to pass. Cities retain the right to regulate = lifeline basic=20 services.

The Iowa state Supreme Court withdraws its 1998 = opinion and=20 says it is appropriate for municipalities to operate telephone = utilities.=20 (City of Hawarden v. U S West Communications, Inc., 590 N.W. 2d = 504 (Iowa=20 1999))

Open access preoccupies the industry much the year. The = U.S.=20 District Court rules in June that the local regulators in Portland, OR = can force=20 AT&T Corp. to open its network as part of the franchise transfer = process.=20 The ruling immediately goes to the Ninth Circuit Court of Appeals. The = core=20 issue is whether high-speed Internet access is a cable or = telecommunications=20 service and whether a cable operator is a +telecommunications facility+ = or a=20 provider of +telecommunications services+. The NCTA argues services like = Road=20 Runner and Excite@Home are advanced cable services and should be = regulated like=20 plain old cable service. In response, AT&T files a lawsuit against = Portland,=20 OR challenging its authority to demand the company open its platform to=20 competitors. Congress introduces several Open Access measures,including = H.R.=20 1686, the Internet Freedom Act, which would allow unaffiliated ISPs = denied cable=20 access to file antitrust suits against cable operators. After defending = its=20 right to refuse to carry independent internet service providers for much = of the=20 year, AT&T smothers the rising public outcry and breaks ranks with = other=20 cable operators in a Decmember 6th agreement to provide Mindspring, the = nation=3Ds=20 second largest ISP, across its high-speed broadband network.( = AT&T v.City=20 of Portland, 43 F. Supp.2d 1146, 1151)

President Clinton = signs the=20 Satellite Home Viewer Improvement Act November 29 which grants DBS = providers the=20 opportunity to bring local broadcast signals into local markets. =

On July=20 31, the U.S. District Court in Miami orders DirecTV and Prime Time 24 to = discontinue distant network stations service to customers in Grade A and = Grade B=20 contours. Following th enactment of SHVIA, the Court rules in December = that=20 PrimeTime 24 can sell distant network signals to any C-band dish owner = who=20 subscribed before Oct 30, regardless of whether they disconnected or = were=20 terminated by court order. (CBS v. PrimeTime 24, 48 F.Supp.2d = 1342, 1363,=20 ruling at 1998 U.S. Dist. LEXIS 20488 (Dec. 30, 1998); CBS v. = DirecTV,=20 1999 U.S. Dist. LEXIS 6503)

Late fee charges plaguing the = industry=20 for years took on a new level as the Maryland Appeals Court issues a = July 26=20 ruling upholding a lower court=3Ds ruling in a class action lawsuit that = AT&T=20 must return about $7.5 million in illegal late fees and interest = paryments to=20 cable customers in Baltimore. Dozens of late fee lawsuits are pending = around the=20 country. (United Cable v. Burch, 732 A.2d 887, 901)

The = U.S.=20 Court of Appeals for the Fifth Circuit in Ne w Orleans holds that local=20 governments have the authority to require open-video system operators to = obtain=20 franchises, even though Congress intended to lift that burden with the=20 Telecommunications Act of 1966. (City of Dallas v. FCC, 165 F.3d = 341,=20 360)

On February 17, The Iowa State Supreme Court withdraws its = 1998=20 opinion and says it is appropriate for municipalities to operate = telephone=20 utilities. (Iowa Telephone Ass=3Dn v. City of Hawarden, 589 = N.W.2d 245,=20 255-256)

Programming
1995
The FCC releases going-forward rules = for rate=20 regulation which lead to growth for a number of networks as systems are = able to=20 add new channels and pass the costs on to customers.

Programming = networks launch online services to complement programming and reach = computer=20 users. Interest in the Internet takes off and World Wide Web pages = become=20 promotional tools as well as sources for programming schedules and = information.=20

Cable in the Classroom grows to 32 network members and more than = 8,400=20 cable systems which provide high quality, educational programming to = more than=20 70,000 schools reaching more than 38 million students across the = country.=20

The industry steps up to the rising criticism of objectionable=20 programming with the Voices Against Violence Week which involves = more=20 than 50 networks.

The seven-month O.J. Simpson trial brings = millions of=20 new cable viewers as CNN, Court TV and E! provide live coverage and = analysis.=20

1996
NBC and Microsoft launch a 24-hour news network, = MSNBC=20 Cable, which replaces the two-year old America=3Ds Talking network that = relies on=20 retransmission-consent for distribution. The July launch includes a = simultaneous=20 launch of a complimentary World Wide Web site on the Internet. =

Cable=20 network recognition among Primetime Emmy nominations reaches an all-time = high-with cable networks receiving one-third of all nominations (125 of = 375).=20 HBO=3Ds 66 nominations surpasses the number received by ABC and is one = shy of=20 CBS=3Ds nomination total. HBO wins six of the 11 Emmy Awards given to = cable=20 networks for excellence in programming and eight of the 15 technical = Emmys.=20 Other cable networks winning Emmys include TNT, Showime, TBS = Superstation, AMC=20 A&E and USA Networks. General Instrument also receives a technical = Emmy=20 award for its digital video encryption technology, the DigiCipher II = system.=20

For the week of August 12th, basic cable prime time ratings rose = to a=20 record 41 share, topping for the first time the aggregate share of the = three=20 broadcast networks which turned in a 37 share, according to Nielsen = Media=20 Research data. Basic cable=3Ds ratings were 21.7, up 22% over 17.8 in = 1995. That=20 compares to a 19.7 for the three broadcasters, a 21% drop from the 24.7 = they=20 scored the previous year.

Mergers dominate the marketplace. On = the=20 programming side, The Walt Disney Company acquires Capital Cities/ABC = and=20 Westinghouse Electric Corp. acquires CBS. The RBOCs Pacific Telesis and = SBC=20 Communications, as well as Bell Atlantic and NYNEX, announce mergers. U = S West=20 announces an acquisition agreement with Continental Cablevision. British = Telcom=20 announces plans to buy MCI Communications. In the Time Warner=20 Entertainment-Turner Broadcasting merger, Ted Turner will be vice = chairman of=20 Time Warner and CEO of a new video division that includes Turner = Broadcasting=3Ds=20 networks, HBO and TWE=3Ds Court TV stake.

More than 30 cable = networks have=20 World Wide Web sites.

Retransmission consent agreements proceed = without=20 serious problems. CBS announces its service developed for retransmission = consent=20 negotiations, +Eye on People,+ will launch in 1997.

Basic = cable=3Ds share=20 during weekend afternoons and early evenings (1-7 p.m.) surpasses the = top three=20 broadcasters over the 1995-96 television season, according to Nielsen = Media=20 Research data. Cable averaged a 36.7 household share compared to = ABC/CBS/NBC=3Ds=20 31 share.

The MPAA/NAB/NCTA proposed age-based TV-ratings system = is=20 announced. Many cable networks voluntarily implement the ratings codes = to=20 prepare for the Telecommunications Act of 1996 requirement that new TV = sets be=20 equipped with +V-chips+ by 1998.

SPORTSCHANNEL Regional Network = partners=20 with Front Row Communications, wholly owned by Florida sports magnate H. = Wayne=20 Huizenga, in SPORTSCHANNEL Florida. The agreement expands = SPORTSCHANNEL=3Ds=20 resources and presence in Florida=3Ds regional sports market. =

Mind=20 Extension University is repositioned into four business units to take = advantage=20 of relative strengths of communication technologies. The TV network is = re-named=20 Knowledge TV. JEC College Connection shifts to greater use of the = Internet as a=20 primary means of course delivery.

Bravo, continuing its = world-wide=20 expansion, launches Bravo Brasil, the first film and arts network in = Brazil,=20 under a strategic alliance with TVA Sistema de Televisao, and Film & = Arts, a=20 Bravo Company Network, which will be available throughout Latin America. = The=20 expansion will feature Bravo=3Ds award-winning animation to brand the = services as=20 the premier arts network in Latin America.

Rainbow launches News = 12 New=20 Jersey, New Jersey=3Ds first and only 24-hour local television news = channel. News=20 12 New Jersey is a joint venture between Rainbow Programming and = Newhouse=20 Communications, the parent company of The Star Ledger.=20

1997
Nine cable networks are honored in 24 CableACE = award=20 categories. HBO leads the way with 11 awards, followed by TNT with four, = CINEMAX=20 and SHOWTIME with two each. HBO earns more Emmy Award nominations (90) = than each=20 of the Big Three Networks. Cable picks up one-third of the 391 = nominations. Much=20 to broadcaster=3Ds disdain, HBO wins 19 Emmys, more than CBS=3Ds 12 = Awards and=20 second only to NBC=3Ds 24 Emmys.

ESPN outbids Fox Sports, the = joint=20 venture between News Corp. and TCI=3Ds Liberty Media Group to buy = Classic Sports=20 Network for $170 million. ESPN2 passes the 50 million household mark = just 47=20 months after its launch.

Cablevision Systems Corp. chairman = Chuck Dolan=20 and son, CEO Jim Dolan increase their ownership of Madison Square Garden = to 89%=20 with an additional $500 million and sell the 40% of Rainbow Media = Holding=3Ds=20 Inc.=3Ds sports channels to News Corp. and TCI=3Ds Liberty Media Group = for $850=20 million. They also plan to buy Radio City Music Hall.

After a = two-year=20 court battle, Seagram pays Viacom Inc. $1.7 billion to acquire the 50% = stake it=20 USA Networks it doesn=3Dt already own, reducing. Viacom=3Ds $17 billion = debt.=20 Subsequently, Barry Diller=3Ds Home Shopping Network announces an = agreement to buy=20 USA Networks (USA and SciFi channel) and other Universal TV assets from = Seagram=20 for $4.1 billion.

Cable programming continues to grow, enjoying = its=20 biggest audience share ever (33.7) during primetime of the first week of = the new=20 fall season, up from 30.5 in 1996. Its 20.2 rating improves from 18.3 in = 1996.=20 In contrast, the Big Four broadcast networks plunge to their lowest = collective=20 share ever during a season-premiere week (62.5 primetime share) and they = lose=20 1.25 million households and their rating drops to 36.7. Cable adds two = million=20 more households.

MSNBC surpasses its startup goal of 35 million=20 households by 2000. The network reaches 38 million households and = expects to hit=20 60 million by 2000.

SHOWTIME Networks, Inc. secures an exclusive = agreement to MGM titles released theatrically through Dec. 31, 2003, = extending a=20 previous agreement dating back to 1994.

A Cable Ad Bureau = analysis of=20 data for the 1996-97 broadcast season reveals the average cable home = watches=20 24.4 hours per week of basic cable and 24.2 hours per week of broadcast=20 programming.

The PPV industry=3Ds annual revenue is over $1.2 = billion,=20 more than doubling since 1994. Movies account for $603 million, events = $413=20 million and adult services $253 million.

Time Warner announces = it will=20 exercise its option to purchase Southern Satellite Services, Inc. which=20 distributes TBS Superstation, from Liberty Media Group for $213 million = as part=20 of the conversion of TBS into a basic cable network

Basic cable = networks=20 score their highest first quarter prime time audience levels yet, while=20 broadcast networks fall to their lowest ratings ever. Marking its 12th=20 consecutive quarter of growth, basic cable pulls 19.1 million households = - an=20 8.4% increase and a 32.6 share (9.8% increase). Ratings at the big four=20 broadcast networks fall to 36.1 million households as their share drops = 5.1% to=20 61.6.

U S West Interactive Services launches Divein, a = localized=20 Internet-content service, in five cities served by US West Media = Group=3Ds=20 Continental Cablevision Inc. or MediaOne cable systems, and in five = cities=20 served by US West. The principal launches are in Atlanta and Denver.=20

Nearly 100 cable networks participate in +Tune In To Kids and = Family=20 Week,+ an unprecedented showcase of the best kids and family-friendly=20 programming on cable. Events included original programming, a live Town = Hall=20 meeting about the impact of television hosted by Linda Ellerbee, and = hundreds of=20 grassroots events conducted by local operators. =

1998
Broadcast=20 television ratings continue to decline. Broadcast=3Ds fall season is = sidetracked=20 by cable=3Ds coverage of +Monica-gate,+ Mark McGwire=3Ds and Sammy = Sosa=3Ds home run=20 contest, and Hurricane Georges. Primetime ratings drop 7.4 percent, = compared=20 with the first week of the new season a year ago. The 35 average rating = is down=20 from 37.8 in 1997. Basic cable=3Ds collective primetime ratings during=20 fall-premiere week rise to 23.2, up a whopping 15% to 23.1 million = homes,=20 according to Nielsen Media Research data. By the fourth week of the fall = season,=20 basic cable networks gain even more, reaching 23.48 million households, = and a=20 39.5 rating. CNN scores its highest-rated day of 1998, with a 2.2 rating = or 1.7=20 million households on the first day of the bombing of Iraq in November. = Cable=20 scores more than the Big Four networks plus WB Television and United = Paramount=20 Network combined ratings in July.

Cable networks=3D Internet = sites also=20 see gains. CNN Interactive logs 23.5 million hits in late December, its=20 third-busiest day ever.

Citing recognition in more prestigious = award=20 arenas including the Emmy, Peabody Awards and Golden Globes, the = National=20 Academy of Cable Programming and the NCTA=3Ds Satellite Network = Committee cancel=20 the National CableACE Awards. Recognition of outstanding local = programming will=20 continue through the local Community Spirit Awards.

Cable = programming=20 matches last year=3Ds record by garnering 28 Emmys from the 50th = Primetime Emmy=20 Award celebration of The Academy of Television Arts & Sciences in = September.=20 Sixteen cable networks receive 1/3 of the 390 nominations. HBO earns 14 = Emmys=20 (three for From the Earth to the Moon). Only NBC (18) and ABC (16) = receive more=20 awards. Other cable networks receiving awards include TNT with five, = Discovery,=20 with three, Showtime with two, and Nickelodeon, Disney, TLC and TBS with = one=20 Emmy each.

HBO wins a Peabody Award for Don King: Only in = America, TNT=20 for George Wallace, Nickelodeon for the public service campaign The Big = Help,=20 The History Channel for The Johnson Tapes and Ted Turner.

ESPN2 = attains=20 60 million subscribers in 60 months, making it the fastest growing basic = cable=20 network in history.

Request TV officially closes its doors, not = merging=20 with Viewer=3Ds Choice, as previously speculated. Ingenius, the = descendant of=20 X*PRESS, the first push technology via cable to personal computers, also = ceases=20 operations in January.

Barry Diller purchases Universal = Studios=3D TV=20 assets, including USA Networks, for $4.1 billion to leverage his Home = Shopping=20 Network and combine transaction (franchise-branded merchandise) and the=20 entertainment business.

Though the industry is focusing on = high-speed=20 data, cable continues to serve 65 million cable homes who watch 7 =BD = hours of=20 programming a day. The Internet, with its explosive growth, is still = used under=20 45 minutes a day in 20 million homes.

Q2, the upscale version of = QVC,=20 fails (after four years) to gain more than six million customers. Style, = the=20 fashion network launched by E! Entertainment Television, takes over = Q2=3Ds=20 transponder.

MTV announces plans to develop a special, = multi-media rich=20 version of the MTV Online Web site for @Home=3Ds cable modem = subscribers, which=20 will include such video and multimedia features as MTV News clips, top = 20 music=20 videos, Daria and Beavis and Butt-head clips.

CBS Corp. first=20 relinquishes control and then sells its entire interest in CBS Eye on = People to=20 Discovery Communications. The network, which reaches 11 million = subscribers, is=20 renamed Discovery People.

Your Choice TV, which relocated to = Denver in=20 1997, shuts down operations in August, after losing around $25 million. = Owned by=20 Discovery Communications and Liberty Media, it provided time-shifted = programming=20 from HBO, ABC, Court TV, C-SPAN, Comedy Central, ESPN, PBS and various=20 Discovery-owned networks to 55,000 subscribers in TCI systems offering = HITS=20 digital programming tier. The slow rollout of digital set top boxes was = cited as=20 one reason for the decision, but holds out the possibility of a relaunch = in the=20 future.

Convergence continues as broadcast networks and = programmers=20 invest in new media ventures and develop Web sites that integrate their = video=20 programming content. Microsoft Corp. passes 500,000 customers for WebTV, = while=20 in InterMedia=3Ds Kingsport, Tenn. system, Wink Communications launches = an=20 Enhanced Broadcasting technology that allows users to go to a Web site = without=20 turning off the TV. WorldGate Communications Inc. rolls out its = InternetTV=20 service on a Charter Communications system in St. Louis.

Though = it was a=20 lackluster year for most industry IPOs, Rupert Murdoch takes Fox = Entertainment=20 Group public as the third largest IPO in history. Its stock rose over = 10% on=20 issue day, bringing parent company News Corp some $2.8 billion in = proceeds.=20

1999
Mergers on the programming side include the = announcement=20 of the largest media merger between Viacom Inc. and CBS Corp. for $41 = billion.=20 It will create a $91 billion global media powerhouse.

After four = years=20 of double-digit annual ratings gains, basic cable=3Ds primetime rating = tapers to=20 8% growth to 25.4 over the period from December 28, 1998 to December 19, = 1999.=20 Basic cable=3Ds gross households ratings in primetime and total day = shares topped=20 the 40 mark for the first time ever. USA and Nickelodeon = are still=20 the top cable networks in primetime and total-day averages, = respectively, as 17=20 networks post primetime ratings gains, 10 networks stay even, and 10 = networks=20 decline in ratings. Premium cable scores a 16% gain to 3.7 during the = first 51=20 weeks of 1999, up from 3.2 in 1998. The broadcast networks experience = primetime=20 household erosion, except for PAX Net which is up 17% to a 0.7 average. = On a=20 weighted basis, the six broadcast networks decline 2% to a 30.8. In the = summer=20 months, the top four broadcast networks dip in ratings by as much as = four=20 percent from the previous year.

For the first time, a majority = of U.S.=20 households spend more time each week watching basic cable than viewing = the big=20 four broadcast networks combined. Nielsen=3Ds second quarter data = reports cable=20 households watch an average of 27 hours 49 minutes of ad supported cable = networks versus 26 hours and 5 minutes of broadcast network programming. =

The concept of TV-Internet convergence gains strength as a = number of=20 companies link TV shows with specially synchronized content on the = Internet, so=20 viewers can use computers and TVs simultaneously. Research verifies the = increase=20 of +multitasking.+ The number of Web-over-TV options increases.=20

Turner South, the first regional entertainment network, = launches=20 to one million customers in six states, and primarily MediaOne Group = Inc.=20 subscribers in Atlanta.

Time Warner Cable=3Ds Mid-South Division = launches=20 Weatherscan Local by The Weather Channel in October. It is the = first=20 Internet-delivered programming service by a major network.

Cable = captures one-third of the 387 Emmy nominations. HBO programs = receive 74=20 nominations, A&E Network gets 20, Showtime has 11 and=20 Turner Network Television receives 10 nominations. Bravo, The = Disney=20 Channel and Nickelodeon each get two nominations. Of = HBO=3Ds=20 nominations, 16 are for its critically acclaimed dramatic series, = +The=20 Sopranos,+ including best series, best actor, best actress, and best = supporting actress. A&E Network receives five Emmy Awards.=20

HBO takes home 16 Creative Arts Emmys, including for its = telefilm=20 +The Rat Pack,+ and +The Sopranos. +A&E Networks, TBC, = TNT and=20 The Discovery Channel also win Creative Arts Emmy Awards.=20

Competition in the health programming genre intensifies as = Fox=3Ds The=20 Health Network launches July 19 with a simulcast cesarean-section = birth of=20 triplets at a Phoenix hospital live on the cable channel to 17 million=20 households and on its Web site. This service merges Fox=3Ds FitTV = and=20 America=3Ds Health Network which previously showed a live birth = on its=20 Internet site. Discovery launches a full-time analog health channel,=20 Discovery Health Channel, August 2 and its Internet site averages = 400,000=20 page views a week in its debut.

The focus on programming for = women also=20 heats up. The incumbent Lifetime reconfigures staff and = programming in=20 anticipation of the launch of former Nickelodeon/Disney/ABC Cable = Networks=20 Executive Geraldine Laybourne=3Ds new Oxygen Media service, scheduled to = launch=20 2/2/2000. Oxygen=3Ds principals also include Oprah Winfrey and the = successful TV=20 programming team of Marcy Carsey, Tom Werner, and Caryn Mandabach. Paul = Allen=3Ds=20 Vulcan Ventures invests $100 million for a 12% stake and luxury goods = group LVHM=20 Moet Hennessy Louis Vuitton and Europ@web make a $122 million = investment. Turner=20 Broadcasting, Time Inc. and Advance Publications announce plans for = The=20 Women=3Ds Channel, but pull the plug before the service launches. = Former USA=20 Networks=3D founder, Kay Koplovitz, is named CEO of the Woman=3Ds = Working Network in=20 addition to launching the PPV network Broadway Television = Network.=20

The Military Channel goes dark July 14, after failing to = gain=20 financial backing from MSOs and gaining distribution to only eight = million homes=20 in ten months.

News Corp and Fox acquire Liberty Media=3Ds 50% = stake in=20 Fox/Liberty Networks, giving Rupert Murdoch full control of Fox = Sports Net,=20 FX and other Fox/Liberty businesses for about 79.9 million shares of = News=20 Corp stock worth about $2.8 billion. Fox buys back 56.2 million shares = from=20 MCIWorldCom for $1.39 billion.

AOL invests $30 million in = Blockbuster=20 for a 3% stake and to jointly develop broadband content and distribution = channels. AOL also signs an exclusive deal with TV Guide to provide = program=20 listings and episode information for AOL=3Ds 20 plus million = subscribers.=20

Gemstar International Group Ltd. settles its patent infringement = case=20 against TV Guide with a plan to purchase TV Guide Inc for $9.2 billion.=20

A group led by Discovery Communications Inc. founder, John = Hendricks,=20 former Continental Cablevision Inc. chairman Amos B. Hostetter, Time = Warner=20 Cable, Cox Communications, and Comcast Corp. pledge $40 million to start = an=20 eight-team professional women=3Ds soccer league, the Women=3Ds United = Soccer=20 Federation.

HBO declines to renew its contract to cover = Wimbledon after=20 25 years of exclusive coverage of the most regal professional tennis = even=20

Regulatory
1995
The FCC begins auctioning the PCS = spectrum. It=20 also changes its cost-of-service rules which provide cable operators = with an=20 alternative to the benchmark formula for calculating their maximum = permitted=20 rates.

High Definition Television (HDTV) is subject to delays = amid=20 Congressional and industry debate on issues.

In order to settle = the=20 outstanding number of rate complaints in a timely manner, the FCC enters = into=20 +social contracts+ with major MSOs. In exchange for subscriber refunds, = stable=20 prices and commitments to rebuild systems and increase channel capacity, = the FCC=20 agrees to stop rate proceedings.Time Warner Cable and Continental = Cablevision=20 enter into such agreements. Comcast, Cablevision Industries,=20 Tele-Communications, Inc., Cox and Cablevision Systems reach more = limited=20 settlements of rate complaints with the FCC.

1996
In = order to=20 facilitate and accelerate the deployment of DBS, the FCC unanimously = approves=20 preemption of local zoning regulations that restrict dish placement. The = FCC=20 proposes to preempt private restrictions (i.e., condo associations, = planned=20 communities, covenant restrictions).

The FCC auctions MMDS = licenses, PCS=20 and DBS frequencies. At 136 days and 181 rounds from start to finish, = the=20 wireless cable auction was the longest in FCC history, raising$216.3 = million for=20 493 Basic Trading Area (BTA) authorizations. The PCS auction raised = $10.2=20 billion.

The FCC is tasked with implementing scores of different = proceedings from the Telecommunications Act of 1996. In August, it = approves an=20 Interconnection Order to facilitate cable operator entry into telephony. = However, in an appeal from the RBOCs, a three-judge panel of the U.S. = Court of=20 Appeals for the Eighth Circuit in St. Louis halts the FCC order that = seeks to=20 open RBOC telephone markets to competition.

1997
The = Clinton=20 Administration plans to raise $26.1 billion from auctioning spectrum. = The=20 largest block, $14.8 billion, would come from broadcasters=3D analog = channels that=20 would be returned to the FCC once the transition to digital is complete. =

Following a Supreme Court ruling, the FCC hands down an order=20 implementing Section 505 of the Telecommunications Act which requires = all cable=20 operators to completely scramble adult programming or place it in the = safe=20 harbor hours (10 p.m. to 6 a.m.).

The FCC hands the industry a = setback=20 with a precedent-setting case in Troy, MI. Cable operators will be = forced to=20 obtain new franchise agreements for upgrading plant to offer telephony. = However,=20 the FCC also found the city of Troy violated federal law by trying to = impose a=20 telecommunications condition on cable construction.

The FCC = approves the=20 British Telcom/MCI $23.7 billion merger, giving PrimeStar access to key=20 transponders enabling them to plan for launching a high-power DBS = service.=20

The FCC forces Rainbow Programming Holdings, a subsidiary of = Cablevision=20 Systems Corp. to sell programming to Bell Atlantic Video Services Co. to = settle=20 a dispute over access to SportsChannel New York for Bell Atlantic=3Ds = Tom=3Ds River,=20 NJ system.

The FCC releases a new set of emergency alert system = rules=20 (EAS) which give operators more time to comply with the technical = criteria for=20 broadcasting emergency signals. Under the new regulations, operators = must offer=20 a visual emergency alert warning on at least one channel and an audio = warning on=20 all channels.

The FCC releases inside wiring rules which allow = landlords=20 and apartment building owners to manage the disposition of broadband = wiring. The=20 rules allow the operator to remove, abandon or sell the wiring to the = new video=20 service provider once a landlord terminates a contract with the cable = operator.=20

1998
In July, the FCC rules Entertainment Connections, = Inc.=20 (ECI) a Michigan SMATV, does not have to have a franchise to = interconnect=20 apartment buildings separated by public streets in East Lansing, Mich. = The=20 company leases fiber optic cable lines owned by Ameritech Corp, the = local phone=20 provider.

The Department of Justice claims PrimeStar=3Ds cable = owners=20 dismantled the first EchoStar/ASkyB deal and files an antitrust suit in = May to=20 prevent PrimeStar from gaining access to the 28 transponders in the = third and=20 final available full-CONUS direct-broadcast satellite slot (110 degrees = west).=20 This action dissolves the June 1997, $1.1 billion merger agreement with = MCI=20 Communications and News Corp because PrimeStar will not agree to the DOJ = demand=20 that the five cable owners divest their ownership interests for the = transaction=20 to continue. MCI purchased the transponders for $682.5 million in 1995.=20

In August, with a 5-0 vote, the FCC tightens existing = program-access=20 rules in an effort to help direct-broadcast satellite, wireless cable = and=20 private cable providers compete against franchise cable companies. Fines = for=20 violations are up to $75,000 for a single violation and victims can = collect=20 damages where programmers willfully violate the rules.

The FCC = Cable=20 Services Bureau reversed its previous order and extends U S West Media = Group=3Ds=20 waiver from federal cross-ownership, allowing the company to keep the=20 Minneapolis Cable system. The ruling was based on U S West restructuring = its U S=20 West Communications and UMG subsidiaries into separate public companies = that=20 abrogate the ban on telco-cable cross ownership.

In a = groundbreaking=20 decision, the Mt. Hood Cable Regulatory Commission recommends the city = of=20 Portland and Multnomah County, Oregon make ISP access a condition for=20 transferring their TCI franchises to AT&T. TCI refuses to accept the = provision. Internet Service Providers, including America Online Inc., = and telcos=20 also lobby the FCC and local regulators to block the merger unless = AT&T=20 agrees to unbundle TCI=3Ds @Home network.

In a pro-DBS decision, = the FCC=20 announced DBS providers will be allowed to set aside the minimum four = percent of=20 their channel capacity for non-profit educational programming, instead = of the=20 maximum seven percent allowed by the 1992 Cable Act.

The FCC = rules that=20 broadcast stations that use their digital-TV licenses for subscription = services=20 will have to pay fees equaling five percent of gross revenues. It is = unclear=20 whether revenues from programming tiers made of digital-TV signals and=20 digital-cable networks would be considered retransmission payments or be = subject=20 to new fees.

On September 17, the FCC rules that Multipoint = Multimedia=20 Distribution Service (MMDS) wireless cable operators can transmit = two-way,=20 high-speed data services, generating more competition for wireline cable = modems=20 and digital subscriber link (DSL) technologies.

Citing +social = contract+=20 regulations the FCC orders eight separate Time Warner Cable systems in = New York=20 and Massachusetts and eight New York Cablevision Systems Corp. = franchises to=20 refund overcharges varying from $.36 to $1.37 each. Cablevision is also = forced=20 to refund $1.2 million to 300,000 subscribers in 60 communities in nine = states.=20 TCI agrees to refund $4.8 million, including $41.88 each to 61,000 = subscribers=20 in Oakland, CA. After March 31, 1999, the FCC regulation of expanded = basic rates=20 will sunset, as stated in the 1992 Cable Act.

The Michigan State = PSC=20 rules that Ameritech New Media must cease and desist offering coupons = worth $120=20 for Ameritech cable customers to use for basic Ameritech telephone = service.=20 Ameritech must pay legal fees incurred by the Michigan Cable = Telecommunications=20 Association to bring the case to its attention. Though it is against = state law=20 to cross-subsidize regulated offerings, the Americhecks can still apply = towards=20 paging, cellular and security monitoring, Ameritech=3Ds unregulated = services.=20 Three months later, the Michigan PSC rules Ameritech again violates = Michigan law=20 by failing to report, in 1995, a $1.7 million transfer of assets to its = cable=20 affiliate, Ameritech New Media.

The FCC proposes easing = regulations for=20 telcos to build long-distance fiber networks as long as the new capacity = is made=20 available to competitors at cost. This is designed to allow telcos to = better=20 deploy their xDSL technology to individual homes and thus compete with = cable=20 modems.

In an attempt for private sector initiatives to campaign = finance=20 reform, Daniels Cablevision gets permission from the Federal Election = Commission=20 to offer free campaign ads to U.S. House and Senate candidates on its = California=20 systems. It voluntarily reserves 20% of its available advertising time = for=20 qualified candidates.

The FCC=3Ds June 11 ruling allows set-top = boxes to=20 be available commercially at retail outlets. The move is mandated by the = Telecommunications Act of 1996. The commission also rules MSOs must = separate out=20 security functions from boxes by July 1, 2000, in spite of industry = lobbying to=20 delay the date until September 1, 2000. (1998 FCC LEXIS 2778; FCC No. = 98-116)=20

1999
The FCC=3Ds Fifth Annual Competition Report shows = DBS grew=20 44% in one year (from 5 million to 7.2 million subscribers, or 9.4% of = the=20 market) while the cable industry grew two percent (three million = customers=20 reaching a total of 73.6 million households) from 1997 to 1998. = Cable=3Ds market=20 share, however, dropped to 85% of the multichannel video programming = distributor=20 (MVPD) market, down from 87% in 1997. The study also shows cable prices = outpaced=20 inflation: Cable prices rose 8.5% while the Consumer Price Index rose = 2%,=20 according to the Bureau of Labor statistics.

As expected, = regulation of=20 the upper tier prices for major cable companies ceases on March 31 with = little=20 fanfare.

Retransmission consent negotiations again result in = embittered=20 battles. Among others, Fox Broadcasting demands Cox Communications = distribute=20 FX, Fox Family and Fox World Sports company-wide on its digital tiers. = As a=20 result, Fox=3Ds broadcast signal disappears from Cox=3Ds line-up for a = week for=20 400,000 angry customers in Washington D. C., Cleveland, Dallas, Houston = and=20 Austin.

The $56.4 million MediaOne merger with AT&T stays in = limbo=20 until the FCC=3Ds cable-ownership-cap-and-attribution rules and the = issue of=20 +insulated limited partnerships+ is resolved. Pushing AT&T over the = 30=20 percent cap is MediaOne=3Ds 25.5% limited partnership in Time Warner=20 Entertainment, making TWE=3Ds 9.7 million subscribers attributable to = AT&T.=20 Together, AT&T, MediaOne, and Time Warner would serve 42 percent of = the=20 nation=3Ds cable and satellite homes. (14 FCC Rcd 19014; FCC No. 99-904) =

A=20 crucial FCC decision December 22 opens the door for Bell Atlantic Crop. = to offer=20 long-distance service to New York residents, the first time since the = AT&T=20 breakup that an RBOC will be allowed to offer local and long-distance = service.=20 (15 FCC Rcd 3953; FCC No. 99-904)

The Connecticut Department of = Public=20 Utility Control votes August 25th to allow SNET, which was purchased by = SBC=20 Communications last year, to discontinue construction of its statewide = HFC=20 network. Through SBC was the first RBOC to jump into the video business = in 1993,=20 its operations never lived up to SBC=3Ds expectations. SBC absorbs = Ameritech and=20 halts the franchising efforts of Ameritech New Media, the nation=3Ds = largest cable=20 over-builder. Its cable/data networks pass 1.7 million homes and serve = 200,000=20 subscribers in 114 communities in Illinois, Ohio and Michigan. (1999 = Conn. PUC=20 LEXIS 347; Docket No. 99-04-02)

The FCC approves the sale of = Comcast=20 Corp.=3Ds cellular-telephone unit to SBC Communicaitons Inc. for $400 = million in=20 cash and $1.3 billion in assumed debt. Comcast Cellular serves = approximately=20 800,000 customers, including the company=3Ds home market of = Philadelphia. Bell=20 Atlantic. (14 FCC Rcd 10604; FCC No. DA 99-1318)

The FCC rules = November=20 18 that Incumbent Local Exchange Carriers (ILECs) must share their lines = with=20 high-speed Internet competitors. The ruling prohibits ILECs from = requiring=20 high-speed Internet competitors to buy a second line when hooking up a = DSL or=20 data customer. The average $20 monthly charge for second line is a = disadvantage=20 when the ILEC uses a single line to offer their own voice and DSL = products.=20 (1999 FCC LEXIS 5958; FCC No. 99-355)

The FCC imposes an array = of=20 conditions and noncompliance penalities in order to approve the $60 = billion=20 merger of SBC and Ameritech. (14 FCC Rcd 14712; FCC No. 99-279) =

The FCC=20 requests a federal appeals court in California overturn a federal = district court=20 order supporting open access to Internet service providers on cable = systems in=20 Portland, OR, maintaining the policy for the Internet regulation is = national,=20 not local. As the +open access+ issue gets hotter, the OpenNet Coalition = of=20 Internet-related companies hires powerful lawyers and a politically=20 well-connected public relations team to assist communities where the = issue is=20 raised. (AT&T v. City of Portland, 43 F. Supp. 2d 1146, = 1151-district court=20 order.)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1999

(Argued: May 25, 2000 Decided: August 14, 2001)

Docket No. 99-9411

-------------------------------------

ROBERT M. GOLDBERG,

Plaintiff-Appellant,

-v.-

CABLEVISION SYSTEMS CORPORATION, a Delaware = Corporation,

Defendant-Appellee.

-------------------------------------

Appeal from an order of the United States District Court for the = Eastern=20 District of New York (Leonard D. Wexler, Judge) granting summary = judgment=20 to the defendant on the plaintiff=3Ds claim that the defendant=3Ds = refusal to=20 cablecast a portion of a television program on a public access channel = violated=20 the federal Cable Communications Policy Act of 1984, 47 U.S.C. =A7 521, = et=20 seq., and New York law.

On March 25, 1999, Plaintiff-Appellant Robert M. Goldberg brought = this=20 lawsuit against Defendant-Appellee Cablevision Systems Corporation in = the United=20 States District Court for the Eastern District of New York. Goldberg=3Ds = complaint=20 alleges that the defendant unlawfully refused to cablecast an = independently=20 produced program that he had submitted to a public access channel on one = of the=20 defendant=3Ds cable systems unless he deleted a twenty-five second = closing segment=20 informing viewers how to purchase transcripts and videotapes of the = program from=20 a third party. On October 8, 1999, the district court (Leonard D. = Wexler,=20 Judge) granted summary judgment in favor of the defendant. = Goldberg=20 appeals.

BACKGROUND

I. Statutory Framework

A. Federal Law

Recognizing that +over the years, local governments have required = cable=20 system operators to set aside [channels] for public, educational, or=20 governmental [+PEG+] purposes as part of the consideration an operator = gives in=20 return for permission to install cables under city streets and to use = public=20 rights-of-way,+ Denver Area Educ. Telecomms. Consortium, Inc. v. = FCC, 518=20 U.S. 727, 734 (1996) (plurality opinion of Breyer, J.), Congress enacted = the=20 Cable Communications Policy Act of 1984 (+Cable Act+), 47 U.S.C. =A7521, = et=20 seq. The Cable Act seeks to promote this type of arrangement within = a=20 nationally uniform structure by providing that a +franchising = authority,+=20 typically a local government or municipality, \l +F1+ may require a = cable operator=20 to make channel capacity available for +PEG access programming+ = \l +F2+ as = part of the=20 franchise agreement pursuant to which the cable operator provides = services to a=20 community. See 47 U.S.C. =A7531. \l +F3+ The Act further = allows a=20 franchising authority to +require rules and procedures for the use of = the=20 channel capacity designated+ for PEG programming and to +enforce any = requirement=20 in any franchise [agreement] regarding the providing or use of such = channel=20 capacity.+ Id. =A7531(b),(c).

Two additional aspects of federal law are central to this appeal. = First,=20 Congress has prohibited cable operators from exercising +editorial = control+ over=20 PEG programming, except that a cable operator may refuse to transmit all = or a=20 portion of +a public access program which contains obscenity, indecency, = or=20 nudity.+ Id. =A7=A7531(e), 544(d)(1). And second, Congress has = not defined=20 what +public, educational, or governmental purposes+ means. That task is = left to=20 state law and to the terms of individual franchise agreements, subject = to the=20 condition that the content of the resulting channels must comport = generally with=20 preexisting industry practice. See Denver Area, 518 U.S. = at 790=20 (Kennedy, J., concurring in part and dissenting in part).

B. State Law

The New York Public Service Commission, which oversees cablecasting = in the=20 State, see N.Y. Pub. Serv. L. =A7=A7 211-30, promulgates certain = minimum=20 standards that are incorporated by law into every franchise agreement. = Those=20 standards include +provisions regarding access to, and facilities to = make use=20 of, channels for education and public service programs,+ id. = =A7215(2)(b),=20 and require that all +cable television franchisee[s]... designate = channel=20 capacity for PEG access.+ N.Y. Comp. Codes R. & Regs. tit. 9, = =A7595.4(b).=20 \l +F4+=20 Filling the gap left by federal law, regulations issued by the = Commission define=20 a +public access channel+ as +a channel designated for noncommercial use = by the=20 public on a first-come, first-served, nondiscriminatory basis.+ = Id. =A7=20 595.4(a)(1). And like their federal counterparts, these provisions state = that a=20 +cable television franchisee shall not exercise any editorial control = over any=20 public, educational or governmental use of channel capacity designated = for PEG=20 purposes.+ Id. =A7595.4(c)(8). \l=20 +F5+ According to the regulations, = franchise=20 agreements +may include any other provision[s] concerning the = designation and=20 use of channel capacity for [PEG] access consistent with Federal and = State law.+=20 Id. =A7595.4(e)(2).

Events

The facts underlying this lawsuit are not in dispute. Goldberg is a = resident=20 of the Town of Oyster Bay. CSC Holdings Inc. (+CSC+), previously named = and sued=20 in the district court as Cablevision Systems Corporation, is the owner = of=20 Cablevision Systems Long Island Corporation, the cable operator that = provides=20 citizens of Oyster Bay with service pursuant to a franchise agreement = between=20 CSC and the town. \l=20 +F6+

The franchise agreement requires CSC to provide at least thirty-six = active=20 channels, two of them exclusively for PEG access programming. Consistent = with=20 state law, a +PEG Access Channel+ is defined in the agreement as +the = channel or=20 channels on which non-commercial PEG Access programming is cablecast.+ = +PEG=20 Access,+ in turn, +mean[s] the right to public, educational and = governmental=20 access that Town residents, its schools, its libraries, as well as the = Town=20 government have to submit non-commercial programs to [CSC] for = cablecasting on=20 PEG Access channels in accordance with rules established and = administered by the=20 FCC, [the New York State Public Service Commission,] and [CSC].+ Under = the=20 franchise agreement, CSC is +responsible for developing, implementing,=20 interpreting and enforcing rules for PEG Access Channel use.+ = \l +F7+ The = terms of the=20 franchise agreement also provide that CSC must comply with +Federal and = State=20 law and regulations requiring and pertaining to [PEG] access.+

In order to provide programming on CSC=3Ds public access channel, = Goldberg=20 entered into an Access User Contract under which he agreed to comply = with CSC=3Ds=20 +Access Rules.+ Access Rule 3(d) provides that

[a]ny audio or visual material [that] promotes or is designed to = promote the=20 sale of commercial products or services (including advertising by or on = behalf=20 of, or in opposition to, candidates for public office) or designed for = fund=20 raising of any nature or kind is prohibited in connection with any = Access=20 Programming. \l = +F8+ Any program which contains any material designed to elicit = a=20 response or any other solicitation of names or addresses which may be = used for=20 future fundraising [sic] activities may be rejected by Cablevision in = its sole=20 and absolute discretion. Notwithstanding the above, +billboard+ type = notices=20 announcing the source of funding (if any) for the production of the = program are=20 permitted.

(Footnote added).

Goldberg offered a program produced and distributed by the Center for = Defense=20 Information (+CDI+) called +America=3Ds Defense Monitor+ for = cablecasting on one=20 of CSC=3Ds public access channels. According to CDI=3Ds Director of = Television, the=20 +America=3Ds Defense Monitor+ program is one of many media through which = CDI=20 furthers its primary objective of sharing its views on military issues. = Various=20 installments of the program were in fact cablecast by CSC on its public = access=20 channel.

On February 5, 1999, CSC=3Ds Director of Programming informed = Goldberg that the=20 then-latest installment of the program violated Access Rule 3(d) because = the=20 final twenty-five seconds of the program, after the credits had run, = contained a=20 +graphic of a Visa/MC logo and a voice over . . . requesting $19.95 for = a copy=20 of the tape+ from CDI. A transcript of the program was also advertised = at a=20 price of $5 each. After the commencement of this lawsuit but prior to = the=20 decision of the district court, the closing segment was changed to = reflect an=20 increase in the price of the videotape to $39 per copy. CDI concedes = that the=20 price of the videotape advertised in the transaction proposed by the = +offending+=20 segment +cover[s] the cost of a blank videotape and the cost of having = the=20 program dubbed onto the blank videotape and provide[s] CDI with a little = money=20 left over . . . and is a very small income stream for CDI.+ Goldberg is = not the=20 seller of the tapes, nor does he obtain profits from the sale.

CSC indicated that it would schedule a cablecast of +America=3Ds = Defense=20 Monitor+ once the disputed segment was removed. For each subsequent = installment=20 of +America=3Ds Defense Monitor+ that Goldberg submitted to CSC for = cablecasting=20 on the public access channel, he has excised the segment that CSC = indicated ran=20 afoul of the Access Rules. This takes Goldberg about an hour for each = such=20 program.

III. Procedural History

Goldberg instituted this lawsuit seeking injunctive and monetary = relief=20 under, inter alia, 47 U.S.C. =A7 531(e), N.Y. Pub. Serv. L. =A7 = 229(3), and=20 42 U.S.C. =A71983. 47 U.S.C. =A7 531(e) provides that

a cable operator shall not exercise any editorial control over any = public,=20 educational, or governmental use of channel capacity provided pursuant = to this=20 section, except a cable operator may refuse to transmit any public = access=20 program or portion of a public access program which contains obscenity,=20 indecency, or nudity.

We vacate the judgment and remand the case to the district court for = further=20 proceedings consistent with this opinion.

DISCUSSION

I. Appellate Jurisdiction

Although neither party has raised the issue, we are obliged at the = outset to=20 assess whether we have jurisdiction to hear this appeal. See = Natale v.=20 Town of Ridgefield, 927 F.2d 101, 104 (2d Cir. 1991). We conclude = that we=20 do.

Goldberg was joined by George Goloff as a plaintiff in this lawsuit. = Goloff=20 sought to challenge CSC=3Ds refusal to carry a program entirely = unrelated to=20 Goldberg, CDI, or +America=3Ds Defense Monitor+ on the public access = channel of=20 another of CSC=3Ds Long Island systems because his program too was = deemed by CSC=20 to be +commercial.+ Although the district court granted summary judgment = against=20 Goldberg, it did not address Goloff=3Ds claims, which remain pending. = See=20 Goldberg, 69 F. Supp. 2d at 399 n.2, 404. The only order entered = in this=20 case therefore did not dispose of all of the claims of all of the = parties. It is=20 thus not a +final order+ appealable under 28 U.S.C. =A71291. =

But prior to the entry of summary judgment, Goldberg made a motion = for a=20 preliminary injunction requiring CSC to cablecast the disputed CDI = programs in=20 their entirety. Instead of ruling specifically on that motion, the = district=20 court considered the cross-motions for summary judgment on the merits.=20 See id. at 399. By ruling in favor of CSC on those = motions, the=20 court necessarily denied Goldberg=3Ds request for a preliminary = injunction. Thus,=20 even though the grant of summary judgment to CSC is +interlocutory+ = because=20 Goloff=3Ds claims remain undecided, that ruling is nonetheless = appealable under 28=20 U.S.C. =A71292(a)(1), which provides for appellate jurisdiction over=20 +[i]nterlocutory orders . . . refusing injunctions.+ See, e.g., = Forest City=20 Daly Hous., Inc., 175 F.3d 144, 149 & n.4 (2d Cir. 1999); = United=20 States v. Miller, 14 F.3d 761, 763 (2d Cir. 1994); Bristol-Myers = Squibb=20 Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 (2d Cir. = 1992).=20

II. Standard of Review

III. Whether CSC=3Ds Refusal to Cablecast Goldberg=3Ds Submission = with the=20 Disputed Closing Segment Violated 47 U.S.C. =A7 531(e)

Goldberg contends that the district court erred in ruling in favor of = CSC=20 because federal law forbids a cable operator to exercise +editorial = control+=20 over any program submitted for cablecasting on a public access channel. = This=20 prohibition, Goldberg argues, is subject to a single exception not = applicable=20 here: +[A] cable operator may refuse to transmit any public access = program or=20 portion of a public access program which contains obscenity, indecency, = or=20 nudity.+ 47 U.S.C. =A7531(e). His appeal thus raises two separate but = interrelated=20 questions: The first is whether a cable operator=3Ds refusal to = cablecast a=20 program or portion thereof that does not fall within the definition of = public=20 access programming constitutes the type of +editorial control+ = prohibited by the=20 Cable Act. The second is whether, assuming a cable operator may patrol = the=20 borders of public access channels in this way, the segment of the = program=20 submitted by Goldberg and refused access by CSC in fact fails to qualify = as=20 public access programming such that CSC=3Ds refusal to cablecast it was=20 lawful.

A. Whether a Cable Operator May Refuse a = Submitted=20 Program that Does Not Qualify as Public Access Programming

We have previously rejected Goldberg=3Ds argument that a cable = operator is=20 powerless to prevent the use of its PEG access channels by programming = that does=20 not belong there. We held in Time Warner Cable of New York City v. = Bloomberg=20 L.P., 118 F.3d 917 (2d Cir. 1997), in the context of educational and = governmental access channels (the +E+ and +G+ of +PEG+), that a cable = operator=3Ds=20 decision that a program does not qualify for PEG access is not the = exercise of=20 +editorial control+ prohibited by =A7531(e) of the Cable Act. We noted = that=20 =A7531(e) precludes +the [cable] operator from attempting to determine = the content=20 of programming that is within the PEG categories,+ id. at = 928=20 (emphasis added), but rejected the notion +that the operator is barred = from=20 enforcing+ the contractual and state-law provisions pursuant to which = PEG access=20 is defined. Id. Analogizing to the Postal Service=3Ds authority = to=20 determine whether a customer=3Ds materials are eligible for third class = or other=20 reduced rates, we stated that +cable operators may enforce the = boundaries of the=20 categories they are obliged to offer . . . without violating section = 531(e).+=20 Id. at 929.

Goldberg seeks to avoid the clear import of Time Warner by = arguing=20 that CSC may enforce those boundaries only by either enlisting the aid = of a=20 court or imploring those who submit material for cablecasting to respect = the=20 limits of public access channels. But such a reading would vitiate the = authority=20 of cable operators that we recognized in Time Warner, and we find = nothing=20 either in the reasoning of that case or in the language, history, or = structure=20 of the Cable Act to support it. We understand Time Warner to hold = directly to the contrary that a cable operator may, without seeking the=20 assistance of a court, refuse to cablecast on a public access channel = any=20 programming that does not meet the legal criteria for dissemination in = that=20 forum.

B. Whether the Closing Segment of the CDI Program Qualifies = for=20 Cablecasting on a Public Access Channel

The question presented, then, is whether the disputed segment of the = CDI=20 program submitted by Goldberg qualifies as public access programming. = The answer=20 to that question will determine whether, in refusing to air the segment, = CSC was=20 permissibly enforcing the boundaries of its public access channel or was = instead=20 exercising editorial control in violation of =A7531(e). Federal law, = which is=20 silent about the definition of PEG programming, does not explicitly = answer this=20 question; instead, we must look to New York State law and regulations = defining=20 the contours of public access channels and to Congress=3Ds stated goals = in=20 providing for them to determine whether the segment submitted by = Goldberg=20 legally belonged in the PEG category.

1. The Definition of Public Access. New York law is clear, if = only in=20 a general sense, about what constitutes public access programming. The=20 regulations issued by the Public Service Commission define a +public = access=20 channel+ as +a channel designated for noncommercial use by the = public on=20 a first-come, first-served, nondiscriminatory basis.+ N.Y. Comp. Codes = R. &=20 Regs. tit. 9, =A7595.4(a)(1) (emphasis added). The Oyster Bay franchise = agreement,=20 which must conform to state law in this regard, see id.=20 =A7595.4(e)(2), echoes this requirement by providing that CSC=3Ds public = access=20 channels may be used only for public submissions of +non-commercial = programs.+=20 \l +F9+=20 Thus, a simple rule emerges when the state law definition of public = access is=20 combined with the federal Cable Act as interpreted by this Court: CSC = was=20 authorized to reject the CDI segment submitted by Goldberg only if it=20 constituted commercial (i.e., did not constitute +noncommercial+) = programming.=20

2. The Definition of +Noncommercial.+ The district court = recognized=20 that the disputed segment of the CDI program did not qualify for = broadcast on a=20 public access channel unless it was +noncommercial.+ See = Goldberg,=20 69 F. Supp. 2d at 403. The court +ha[d] no difficulty+ concluding that = to the=20 contrary, it was commercial in nature. Id. at 402. Noting that in = the=20 segment containing the advertisement, +for whatever reason, Goldberg is = offering=20 tapes and transcripts of the program for sale,+ the court concluded that = the=20 segment was +[p]lainly [an] offer[] [by Goldberg] to enter into a = commercial=20 transaction with his viewers.+ Id. The court then alluded to = Supreme=20 Court decisions defining commercial speech for First Amendment purposes, = stating=20 that +the... segment of the program [in issue] falls within the =3Dcore = notion of=20 commercial speech -- +speech which does no more than propose a = commercial=20 transaction.+=3D+ Id. (quoting Bolger v. Youngs Drug Prods. = Corp.,=20 463 U.S. 60, 66 (1983) (quoting Virginia State Bd. of Pharmacy v. = Virginia=20 Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976))). This = conclusion=20 was unaffected either by CDI=3Ds assertion that the sales of tapes and = transcripts=20 produced only a +very small income stream+ and helped to disseminate = CDI=3Ds=20 message, or by the fact that the CDI program that preceded the offer and = that=20 was the subject of the sale contained discussions of public issues that = were=20 matters of public debate. Id..

To be sure, CDI=3Ds sale of tapes and transcripts, like any other = exchange of=20 goods for money, may be +commercial+ for at least some purposes. = \l +F10+ For = example, the=20 offer proposing the sale might be without First Amendment protection if = it were=20 false or misleading, see Cent. Hudson Gas & Elec. Corp. v. = Public=20 Serv. Comm=3Dn of New York, 447 U.S. 557, 566 (1980), and the rights = of the=20 parties to such a sale would likely be governed by the Uniform = Commercial Code.=20 \l +F11+ In=20 that sense, the offer contained in the CDI advertisements very well may = have=20 +propose[d] a commercial transaction.+ Virginia State Bd. of = Pharmacy,=20 425 U.S. at 762. \l=20 +F12+

But we cannot agree with the district court that speech that +does no = more=20 than propose a commercial transaction+ and therefore is +commercial = speech+ for=20 purposes of First Amendment analysis is necessarily +commercial+ for = purposes of=20 deciding whether it is entitled to first-come, first-served access to = free cable=20 channels. An advertisement for tapes and transcripts of a cablecast may = be=20 +commercial+ for purposes of assessing constitutional limits on = regulating the=20 truth of the statements contained in the advertisement, yet = +noncommercial+ for=20 access purposes because of the role the advertisement plays in = furthering the=20 dissemination of the contents of the program in more permanent form. The = meaning=20 of +commercial speech+ employed by the district court was developed by = the=20 Supreme Court in order to identify a species of speech which, because of = its=20 commercial function, is amenable to regulation or prohibition outside of = First=20 Amendment restraints when it is false or misleading. See = Virginia=20 State Bd. of Pharmacy, 425 U.S. at 771-73; \l +F13+ Cent. Hudson = Gas &=20 Elec. Corp., 447 U.S. at 566 (+For commercial speech to come within = [First=20 Amendment protection], it at least must concern lawful activity and not = be=20 misleading.+) To find an appropriate definition of +noncommercial use+ = in the=20 present context, we must engage in a different inquiry, assessing the = customs=20 and policies underlying the preferential treatment of +noncommercial+=20 programming in the public access context. It is to that analysis that we = now=20 turn.

Third, we have cautioned that +courts enforcing the outer limits of = PEG=20 categories must be alert not to permit a cable operator to bar = disfavored=20 programming under the guise of enforcing such limits.+ Time = Warner, 118=20 F.3d at 928. Although this warning has an obvious meaning with respect = to=20 attempts by a cable operator to squelch the dissemination of views that = are=20 unpopular or with which the operator disagrees, it also has force where, = as=20 here, applicable state law appears to provide a financial incentive for = a cable=20 operator to deem a program ineligible for public access cablecasting. = See=20 N.Y. Comp. Codes R. & Regs. tit. 9, =A7595.4(c)(12) (providing that = under=20 certain circumstances a cable operator may use vacant PEG access space = for paid=20 programming). Because a cable operator has an incentive to exclude as = much as=20 possible from its public access channels, we hesitate to provide it with = carte=20 blanche in doing so, especially when we have concluded that the disputed = programming can further the purposes of the PEG concept. =

In light of these considerations, we conclude that in this context, = whether=20 an advertisement for the sale of tapes and transcripts of a public = access=20 program is +commercial+ depends on the advertisement=3Ds function. If = its primary=20 role is to disseminate more broadly or more permanently the message = contained in=20 the program, then requiring a cable system to carry it without charge is = fully=20 consistent with the purpose of public access channels: +to contribute to = the=20 diversity of information and information sources available to the public = and to=20 stimulate public debate by providing a forum therefor.+ Minimum=20 Standards, at 351. Cablecasts of such advertisements ultimately help = to=20 promote +the widest possible diversity of information sources and = services to=20 the public.+ 47 U.S.C. =A7 521(4). They extend the reach of +the video = equivalent=20 of the speaker=3Ds soap box... , provid[ing] groups and individuals who = generally=20 have not had access to electronic media+ with more effective access. = H.R. Rep.=20 No. 98-934, at 30, 1984 U.S.C.C.A.N. at 4667.

If the principal function of an advertisement for tapes and = transcripts is to=20 produce financial gain, by contrast, requiring cable companies to carry = it on=20 their public access channels would do little to advance the goals = underlying the=20 creation of those channels. Because there is money to be made, such = tapes and=20 transcripts will likely be promoted and purchased, and the message = contained on=20 them therefore propagated, even if the seller must pay for the necessary = advertising time. At the same time, requiring cable operators to carry = such=20 advertisements on public access channels may threaten the diversity of = those=20 channels by opening them to an onslaught of material properly carried in = paid=20 media, thereby crowding out legitimate PEG programming that has no other = effective avenue of dissemination. +[I]t is precisely because much of = PEG=20 programming has a limited, often specialized audience whose needs are = not=20 otherwise met that makes it important not to divert PEG channels to = non-PEG=20 purposes.+ Time Warner, 118 F.3d at 929-30.

PEG access is provided at no charge, and therefore entirely at the = expense of=20 the cable operator. See N.Y. Comp. Codes R. & Regs. tit. 9,=20 =A7595.4(c)(6). \l = +F14+ We would not lightly conclude that Congress and the New = York State=20 Public Service Commission meant to permit purveyors of tapes, = transcripts, or=20 indeed other goods, to appropriate valuable cable access from a cable = company=20 for their own financial benefit without paying for it.

3. Application of the Definition. We realize, of course, = that this=20 rule may be simpler to state than to apply. Determining the function of = an=20 advertisement in this context may be difficult. Several observations are = therefore in order.

First, the burden of establishing entitlement to cablecast on a = public access=20 channel should be placed on the person seeking it. That person will = likely be=20 better positioned than the cable company to come forward with proof as = to the=20 primary function of the advertising in question. Cf.United States v. = 194=20 Quaker Farms Rd., 85 F.3d 985, 990 (2d Cir. 1996) (placing the = burden of=20 proof on the person with superior access to evidence +is a common = feature of our=20 law+) (citation omitted).

Second, that the principal purpose of an advertisement is not=20 financial would indicate that its principal function is probably = not=20 financial gain. We think that in most if not all cases, if the = program=3Ds=20 submitter can show at the time of submission of the program to the cable = operator that the price for which the tapes or transcripts are being = advertised=20 was calculated by the advertiser to cover the advertiser=3Ds marginal = costs for=20 the sale and dissemination of the tapes or transcripts, the advertising = would be=20 +noncommercial.+

In cases in which the manner in which the price is set is not = conclusive,=20 both the nature of the submitter or advertiser and the nature of the = program in=20 which the advertisement appears may be considered. If the entity = supplying or=20 producing the advertisement is a profit-making organization (assuming = that such=20 an organization can ever obtain time on public access channels for its=20 programming), then it is likely that the tapes and transcripts are being = offered=20 as part of an overall effort by that entity to make money. A = not-for-profit=20 organization=3Ds advertisements of this sort are, conversely, less = likely to have=20 a financial role, although, as this case illustrates, that fact is not=20 dispositive. And an advertisement for a program devoted to the = presentation of=20 information or ideas at the core of the seller=3Ds educational or = ideological goal=20 is less likely to be part of an effort to obtain a financial benefit = than is an=20 offer to sell reproductions of programming that is either devoid of = ideas or=20 information, or rich in the kind of content commonly carried on leased = access or=20 ordinary news and entertainment channels.

In Goldberg=3Ds case, the record evidence as to the function of the = CDI=20 advertisements for tapes and transcripts of +Americas Defense Monitor+ = is=20 inconclusive. CDI=3Ds +Director of Television+ stated by way of = affidavit that the=20 advertisements were +[t]o further disseminate our point of view.+ At the = same=20 time, however, he conceded that the $39 price of videotapes exceeded the = cost of=20 providing them. We cannot say whether the principal role of the = advertisements=20 was the further dissemination of CDI=3Ds views or the generation of a = +small=20 income stream+ after the sales transactions were completed. Neither CSC = at the=20 time it was assessing the advertisements for cablecast, nor the district = court=20 addressed the issue; Goldberg and CDI treated it only in passing during = the=20 course of this litigation. We therefore return the case to the district = court to=20 decide the issue in the first instance.

CONCLUSION

* The Honorable Richard W. Goldberg, of the United States Court of=20 International Trade, sitting by designation.

\l +T1+ A +franchising authority+ is = +any=20 governmental entity empowered by Federal, State, or local law to grant a = [cable=20 television] franchise.+ 47 U.S.C. =A7 522(10).

\l +T2+ We use the term +public access = channel+=20 to refer to a channel on a cable operator=3Ds system devoted to +public = access+ as=20 opposed to +educational+ or +governmental+ programming. =

\l +T3+ +Leased access+ channels, in = contrast to=20 PEG channels, are channels required by federal law to be reserved for = commercial=20 lease by outside parties. See 47 U.S.C. =A7 532(b)(1). They must = account=20 for between 10 and 15 percent of a cable system=3Ds channels, depending = on the=20 total capacity of the system. See id. The use of such = channels is=20 not at issue in this appeal.

\l +T4+ Specifically, regulations = provide that=20 +[t]he franchisee of a cable television system with a channel capacity = of 21 or=20 more channels shall designate . . . at least one full-time activated = channel for=20 public access use.+ Id. =A7 595.4(b)(1).

\l +T5+ In addition, a New York Public = Service=20 Law under which Goldberg sued in the district court prohibits cable = television=20 companies from barring or limiting any program or class or type of = program=20 presented on a public access channel. See N.Y. Pub. Serv. L. =A7=20 229(3).

\l +T6+ CSC Holdings Inc. has not = challenged at=20 any point in this litigation Goldberg=3Ds assertions that CSC, rather = than its=20 wholly owned subsidiary, Cablevision Systems Long Island Corporation, is = responsible for the actions that are the subject of his amended = complaint and=20 this appeal.

\l +T7+ Although the Town has the = option to=20 delegate the operation of the public access channel to a third party, so = far as=20 we can tell from the record, it has not done so.

\l +T8+ +Access Programming+ is defined = in the=20 Access Rules as +[v]ideo and audio material provided by Access Channel = Users on=20 the [PEG] Access Channel(s), which programming concerns matters of = interest to=20 and/or is about Cablevision=3Ds service area.+

\l +T9+ We recognize that the meaning = of=20 +noncommercial+ in the franchise agreement and +commercial+ in Access = Rule 3(d)=20 could conceivably differ from the definitions of those terms under State = law.=20 Because any contractual narrowing or broadening of those terms would = arguably be=20 inconsistent with state law in violation of N.Y. Comp. Codes R. & = Regs. tit.=20 9, =A7 595.4(e)(2), as well as with other provisions of the agreement = itself,=20 however, we read the contractual and statutory definitions to be = coterminous and=20 therefore focus on the latter in our analysis.

\l +T10+ +Commercial+ means +[o]f or = relating to=20 commerce.+ The American Heritage Dictionary of the English = Language 371=20 (4th ed. 2000). Dictionary definitions of +commerce,+ in turn, speak in = terms of=20 +[t]he buying and selling of goods . . . ,+ id.; the +[e]xchange = between=20 men of the products of nature or art; buying and selling together; = trading;=20 exchange of merchandise,+ The Oxford English Dictionary, 552 = (1989); and=20 +the exchange or buying and selling of commodities on a large scale = involving=20 transportation from place to place,+ Merriam-Webster=3Ds Collegiate=20 Dictionary, 230 (10th ed. 2000) (second definition). Advertisements = for the=20 CDI tapes and transcripts appear to fit the first two definitions if not = the=20 third.

\l +T11+ See U.C.C. =A7 2-106(1) = (+A =3Dsale=3D=20 consists in the passing of title from the seller to the buyer for a=20 price.+)

\l +T12+ To the extent that CDI=3Ds = advertisements=20 were part of its effort to disseminate its message, they did in a sense = do=20 +more than propose a commercial transaction.+ Virginia State = Bd. of=20 Pharmacy, 425 U.S. at 762 (emphasis added). They were part of a = process by=20 which CDI conveyed facts and expressed opinion. Cf. New York = Times Co.=20 v. Sullivan, 376 U.S. 254, 266 (1964) (+The publication here was not = a=20 =3Dcommercial=3D advertisement in the sense in which the word was used = in=20 [Valentine v.] Chrestensen[, 316 U.S. 52 (1942) (holding = that=20 commercial advertising was then without First Amendment protection)]. It = communicated information, expressed opinion, recited grievances, = protested=20 claimed abuses, and sought financial support on behalf of a movement = whose=20 existence and objectives are matters of the highest public interest and=20 concern.+) Nevertheless, for purposes of this analysis we assume that = CDI=3Ds=20 advertisements did +no more than propose a commercial transaction,+=20 Goldberg, 69 F. Supp. 2d at 402, and were therefore +commercial = speech+=20 for purposes of First Amendment analysis.

\l +T13+ The Court has said that = +commonsense=20 differences [between commercial speech and +other forms+] . . . suggest = that a=20 different degree of protection is necessary to insure that the flow of = truthful=20 and legitimate commercial information is unimpaired.+ Virginia State = Bd. of=20 Pharmacy, 425 U.S. at 771-72 n.24. Among these differences is the = fact that=20 +commercial speech . . . may be more easily verifiable by its = disseminator than=20 . . . news reporting or political commentary, in that ordinarily the = advertiser=20 seeks to disseminate information about a specific product that he = himself=20 provides and presumably knows more about than anyone else. Also, = commercial=20 speech may be more durable than other kinds.+ Id. at 772 = n.24.

These differences are relevant insofar as they address permissible = regulation=20 of the truth of any claims or representations about the products offered = in=20 advertisements for tapes and transcripts. But they may be irrelevant to = the=20 determination of whether such advertisements must be accepted for = cablecast on=20 public access channels.

\l +T14+ +Leased channels+ that cable = operators=20 are required by federal law to make available to parties unaffiliated = with the=20 operator, see 47 U.S.C. =A7 532(b)(1), are, by contrast, = typically the=20 subject of a commercial lease between the cable operator and programmer, = which=20 lease sets various rates, terms, and conditions for the channel=3Ds use. = See,=20 e.g., H.R. Rep. No. 98-934, at 48, reprinted in 1984 = U.S.C.C.A.N. at=20 4685.

+/2ndCircuit/copyright.html+=20 2001 Touro College Jacob D. Fuchsberg Law Center

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

- - - - - -

August Term, 1998

(Argued: November 4, 1998 Decided: June 14, 1999 )

Docket Nos. 97-9301, 97-9601, 98-7040

_________________________________________________________

THOMAS LOCE and ED RICHTER both individually and doing business as = LIFE=20 WITHOUT SHAME,

Plaintiffs-Appellants-Cross-Appellees,

- v. -

TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP d/b/a TIME = WARNER=20 COMMUNICATIONS and TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE d/b/a TIME = WARNER=20 CABLE,

Defendants-Appellees-Cross-Appellants.

_________________________________________________________

Before: KEARSE and POOLER, Circuit Judges, and POLLACK,

District Judge \l +N_1_+

.

Appeal and cross-appeal from a judgment of the United States District = Court=20 for the Western District of New York, Michael A. Telesca, Judge,=20 dismissing claims under the First Amendment; upholding in part and = dismissing in=20 part claims under the Communications Act of 1934, as amended, 47 U.S.C. = 532; and=20 enjoining defendants from enforcing certain provisions of their written = policy=20 on indecent cable television programming.

Affirmed.

EDWARD L. FIANDACH, Rochester, New York (Arthur Eisenberg, Kenneth P. = Norwick, Fiandach & Fiandach, Rochester, New York, on the brief), = for=20 Plaintiffs-Appellants-Cross-Appellees.

STUART W. GOLD, New York, New York (Jeffrey L. Nagel, Cravath, Swaine = &=20 Moore, New York, New York, Paul J. Yesawich, III, Harris, Beach & = Wilcox,=20 Rochester, New York, on the brief), for=20 Defendants-Appellees-Cross-Appellants.

KEARSE, Circuit Judge:

Plaintiffs Thomas Loce and Ed Richter, individually and doing = business as=20 Life Without Shame, appeal from so much of a final judgment of the = United States=20 District Court for the Western District of New York, Michael A. Telesca, = Judge, as dismissed their claims under the First Amendment of the = Constitution and 612 of the Communications Act of 1934, as amended by = the Cable=20 Communications Policy Act of 1984 (the +1984 Act+), by the Cable = Television=20 Consumer Protection and Competition Act of 1992 (+Cable Act of 1992+ or = +1992=20 Act+), and by Title V of the Telecommunica-tions Act of 1996 = (collectively the=20 +Cable Act+ or +Act+), codified at 47 U.S.C. 532 (1994 & = Supp. II=20 1996), against defendants Time Warner Entertainment Advance/Newhouse = Partnership=20 et al. (collectively +Time Warner+ or +TW+) for (a) refusing to = transmit=20 certain of plaintiffs=3D television programs on defendants=3D leased = access channels=20 on the ground that the programs violated defendants=3D policy against = indecent=20 programming, and (b) refusing to specify what = parts of=20 the submitted programs defendants found objectionable. The = district=20 court granted partial summary judgment dismissing plaintiffs=3D First = Amendment=20 claims on the ground that Time Warner is not a state actor and = dismissing in=20 part their statutory claims on the ground that = Time=20 Warner=3Ds refusals to transmit or assist in editing the programs in = question were=20 not unreasonable and hence did not violate the Cable Act. = Plaintiffs=20 challenge these rulings on appeal. The district court also ruled that = Time Warner=3Ds policies of (a) requiring programmers to = certify=20 that they would not submit programs that Time Warner would consider = indecent,=20 and (b) suspending programmers who had submitted programs that Time = Warner=20 considered indecent, and refusing to allow further program submissions = by such=20 programmers, violated the Act. Time Warner cross-appeals from = so much=20 of the judgment as granted declaratory and injunctive relief against its = policy=20 of suspending programmers. For the reasons that follow, we affirm the=20 judgment.

I. BACKGROUND

Most of the facts are undisputed. Pursuant to franchise agreements = with=20 municipalities in and around Rochester, New York, and Syracuse, New = York, Time=20 Warner offers cable television service in the Rochester and Syracuse = areas. Time=20 Warner offers its subscribers, for a monthly fee, +standard-tier+ = programming=20 containing several dozen channels, as well as optional +premium+ = channels for=20 which a subscriber pays an additional monthly fee, and +pay-per-view+ = programs,=20 for each of which a subscriber must make a specific request and pay a = one-time=20 fee. The vast majority of Time Warner=3Ds customers in the Rochester and = Syracuse=20 areas subscribe only to standard-tier programming.

Standard-tier programming includes +leased = access+=20 channels for commercial use by unaffiliated programmers, as required by = the 1984=20 Act, see 47 U.S.C. 532(b) (1994).

Standard-tier programming is unscrambled at all times, and a = subscriber=20 cannot avoid receiving the leased access channels except by obtaining an = addressable converter capable of blocking specific channels or by having = Time=20 Warner install a physical device called a +trap+ on the subscriber=3Ds = cable line.=20 Programs containing nudity and sexually explicit content, when provided = by Time=20 Warner or its affiliates, are not shown on standard-tier channels but = are=20 confined to the optional premium or pay-per-view channels. The present = case=20 involves the contents of programs provided by independent programmers on = leased=20 access channels, which, as part of standard-tier programming, are = transmitted to=20 all subscribers and are not scrambled.

Loce and Richter are independent producers of cable television = programming=20 doing business as Life Without Shame (collectively +plaintiffs+ or = +LWS+).=20 During the period 1993-1996, pursuant to lease agreements with Time = Warner,=20 plaintiffs=3D television program +Life Without Shame+ was broadcast on = leased=20 access channels in the Rochester and Syracuse areas. Airing from = midnight to 1=20 a.m., the program principally featured scenes = of female=20 nude dancers in various adult clubs in those areas, along with = commentary and=20 interviews by Loce and Richter as the show=3Ds hosts. The hosts=3D = commentary=20 typically focused on a stripper=3Ds physique and the hosts=3D fantasies = about that=20 woman or any number of other women. The program became a source of = controversy,=20 as area subscribers and community members petitioned Time Warner to = cease=20 carrying the show.

A. Time Warner=3Ds Indecency Policy

In 1996, following the Supreme Court=3Ds decision in Denver Area = Educational=20 Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), = upholding=20 the constitutionality of a provision of the Cable Act of 1992, 47 U.S.C. = 532(h)=20 (1994), which allows cable operators to exercise limited editorial = control over=20 programs on leased access channels, see Part II.A, below, Time = Warner=20 adopted a written policy forbidding +indecent+ material on leased access = channels (the +Indecency Policy+ or +Policy+) in its Rochester and = Syracuse=20 divisions (+TW Rochester+ and +TW Syracuse+ respectively). The Indecency = Policy=20 stated, inter alia, that Time Warner

has adopted a policy that prohibits indecent programming on leased = access=20 channels and which will continue to prohibit obscene programming in = accordance=20 with State law. . . .

1. Indecent programming will not be carried on leased access = channels.

2. For purposes of this policy, +indecent = programming+=20 is defined as any programming that the cable operator reasonably = believes=20 describes or depicts sexual or excretory activities or organs in a = patently=20 offensive manner as measured by contemporary community standards for the = cable=20 medium. +Obscene+ is defined as that term is used in New York = Penal=20 Law Section 235. The term +programming+ includes advertising.

The Indecency Policy required any program provider seeking use of = leased=20 access channel capacity to +certify in its application (a) that the = program=20 provider is responsible for the content of the programming; and (b) that = the=20 program provider will not submit for cablecast any programming that is = obscene=20 or indecent as defined herein.+ (Indecency Policy 4.) Time Warner = +reserve[d]=20 the right to determine whether programming exhibited or sought to be = exhibited=20 is indecent.+ (Id. 8.)

The Indecency Policy provided that programmers who submitted indecent = or=20 obscene material for cablecast could lose their eligibility to obtain or = retain=20 leased access channel capacity on the Time Warner system. The first = submission=20 of such material was to result in a six-month suspension of the = programmer=3Ds=20 eligibility; any further submission of such material was to result in a=20 permanent suspension of the programmer=3Ds eligibility:

Any program provider who, on more than one occasion, seeks to have = indecent=20 material exhibited after having certified that its programming does not = contain=20 indecent or obscene material no longer will be eligible to obtain or = retain=20 leased access channel capacity on the system. The first time a program = provider=20 who has completed the aforementioned certification submits material that = is=20 indecent as defined in this policy, the material will not be cablecast = and the=20 program provider=3Ds eligibility to obtain or retain leased access = channel=20 capacity will be suspended for 6 months. Any submission of obscene = material by a=20 program provider constitutes grounds for revocation of all eligibility = to obtain=20 or retain leased access channel capacity on the system.

(Id. 7 (the +suspension provisions+).)

In early 1997, Loce and Richter entered into new lease agreements = with TW=20 Syracuse and TW Rochester for use of leased access channels. Their 1997 = lease=20 agreements explicitly incorporated by reference Time Warner=3Ds = Indecency Policy,=20 and Loce and Richter signed separate documents certifying that LWS would = not=20 submit for cablecast any +indecent+ or +obscene+ material as defined by = the=20 Policy.

B. The Rejected LWS Programs

In 1997, LWS submitted to Time Warner three episodes of +Life Without = Shame,+=20 whose rejection by Time Warner prompted the present lawsuit. In January = 1997,=20 LWS submitted to TW Syracuse an episode entitled +The Best of Lookers.+ = The=20 program was filmed at a Syracuse adult club called +Lookers+ and = contained,=20 inter alia, scenes of women dancing = topless,=20 fondling their breasts, pressing their breasts against customers=3D = faces, or=20 simulating acts of sex and masturbation. The episode also contained = advertisements for=20 various other nude and topless dance clubs in Syracuse, as well as = advertisements for an=20 +escort service+ promising +we make house and hotel calls.+ One or more of the commercials showed women topless, = contained=20 lines such as +Bring your hard dicks down here,+ and depicted a topless = woman=20 performing a +lap dance+ on Richter.

Several officials of TW Syracuse, including the division=3Ds = president,=20 reviewed +The Best of Lookers+ and concluded that the program was = indecent=20 within the meaning of Time Warner=3Ds Indecency Policy. TW Syracuse = notified=20 plaintiffs that the episode violated the Policy and would not be = transmitted.=20 The letter also stated that, pursuant to the suspension provisions, = plaintiffs=20 would be prohibited from submitting new material to TW Syracuse for six=20 months.

In February 1997, plaintiffs, no longer able to submit programs to TW = Syracuse, submitted to TW Rochester a program entitled +A Tribute to = Violence.+=20 The program contained numerous real-life scenes of violence and = brutality, such=20 as a man being devoured by lions, with his family watching helplessly, = and a man=20 committing suicide by shooting himself in the mouth. The episode also = contained=20 excerpts from graphically violent motion pictures, such as a Kung Fu = scene in=20 which a man with no arms fights a man with no legs, and a=20 scene from a film called +The Gore Gore Girls+ in which a man approaches = a woman=20 from behind, slits her throat, bends her torso over a table, and beats = her=20 buttocks with a meat tenderizer until they are covered with blood.=20 Neither the +A Tribute to Violence+ episode nor its accompanying advertisements showed women = topless; on=20 the tape, Richter and Loce, seeking to emphasize to their intended = audience that=20 Time Warner aired shows depicting carnage and violence but refused to = show naked=20 breasts, announced that their purpose was to present a show that was = deeply=20 offensive but that did not violate the Indecency Policy because it was = free of=20 sexual content.

Despite the latter characterization, the +A Tribute to Violence+ tape = contained advertisements for adult clubs=20 depicting scantily-clad women and for an escort service; and some = of the=20 program content was accompanied by remarks by Loce and Richter having = obviously=20 lewd or sexual overtones. For example, the = scene=20 depicting the fight between amputees was accompanied by the following = exchange=20 between the narrators:

And in the scene from +The Gore Gore Girls,+ = the woman=20 whose throat is cut is clad in a partially see-through bikini; her = bloodied=20 buttocks are shown; and as she is bent over a table, Loce and Richter, = in their=20 narrative, agree that that is their +favorite position of a=20 woman.+

After reviewing +A Tribute to Violence,+ Time Warner refused to = transmit the=20 episode. It informed plaintiffs that it considered the program = +offensive to=20 contemporary community standards+ and that it was exercising +its right = under=20 Title 47 USC 532 and other applicable law to reject the submitted taped=20 program.+ (Time Warner Letter to LWS dated February 28, 1997.) In = rejecting +A=20 Tribute to Violence,+ Time Warner did not suspend LWS from submitting = other=20 programs to TW Rochester.

Throughout February 1997, LWS submitted other shows to TW Rochester = that were=20 not deemed indecent under the Indecency Policy. In March 1997, however, = LWS=20 submitted to TW Rochester a program entitled +The All Black Special.+ In = that=20 program, Loce and Richter, as the show=3Ds hosts, announced that they = were paying=20 tribute to the African-American members of their audience. The episode = showed scenes of African-American women dancing topless = at various=20 adult clubs, fondling their breasts, crawling and gyrating on the floor, = and=20 spreading their legs in front of customers. The tape also contained = advertisements similar to those=20 in +The Best of Lookers.+

At least three officials at TW Rochester, including the division=3Ds = president,=20 reviewed the +All Black Special+ and concurred that the program was = indecent.=20 Time Warner notified LWS that the show violated the Indecency Policy and = would=20 therefore not be telecast. Time Warner also informed LWS that, pursuant = to the=20 Policy=3Ds suspension provisions, LWS was prohibited from submitting = programs to=20 TW Rochester for six months. Thereafter, +Life = Without=20 Shame+ was transmitted, without commercial sponsorship, on TW = Rochester=3Ds public access channel.

C. The Present Action

Following notification of Time Warner=3Ds refusal to telecast +The = All Black=20 Special,+ plaintiffs commenced the present action, principally seeking a = judgment declaring that the application of Time Warner=3Ds Indecency = Policy to the=20 three rejected episodes violated plaintiffs=3D rights under the First = Amendment=20 and the Cable Act, and requesting preliminary and permanent injunctions forbidding Time Warner from = engaging in=20 pre-screening and censorship pursuant to the Policy. Pointing = to the=20 Cable Act=3Ds requirement that the terms of leased access use not be=20 +unreasonable,+ 47 U.S.C. 532(d) (1994), plaintiffs contended that Time = Warner=20 had violated that provision by failing = to respond=20 to requests for clarification of whether the Policy forbade depictions = of=20 topless women and by refusing to specify the parts of the rejected tapes = it=20 considered indecent in order to give programmers an opportunity to edit = and=20 resubmit modified versions of the tapes. With regard to +A = Tribute to=20 Violence,+ plaintiffs contended that the Act did not authorize Time = Warner to=20 ban programming other than that which violated its written Indecency = Policy, and=20 that the show did not violate the Policy because it contained no sexual = content.=20 Plaintiffs sought a preliminary injunction requiring Time Warner to = transmit=20 +The Best of Lookers,+ +The All Black Special,+ and +A Tribute to = Violence+ in=20 their entirety.

Plaintiffs also argued that if cable operators deem programming to be = indecent, the Cable Act authorizes them to bar only the program, not the = persons=20 who provide the programs, and they requested an injunction against Time = Warner=3Ds=20 enforcement of its suspensions of LWS and a judgment declaring that the=20 suspension provisions of the TW Indecency Policy violated the Act.

Time Warner opposed the requests for declaratory and injunctive = relief and=20 moved for judgment on the pleadings or for summary judgment dismissing = the=20 complaint. It contended that the First = Amendment was not=20 applicable because, inter alia, Time Warner is not a state actor. = It contended that the Cable Act permitted it to refuse to air = the=20 three programs because they were +patently offensive+ as judged by = contemporary=20 community standards in the Rochester and Syracuse areas. With regard to = +A=20 Tribute to Violence,+ Time Warner argued that the concept of indecency = was broad=20 enough to encompass graphic violence, and that a number of the scenes on = the=20 tape contained sexual content. With regard to the +The Best of Lookers+ = and +The=20 All Black Special,+ the contents of those programs were described by = Time Warner=20 as follows in its statement of material facts as to which it contended = there was=20 no genuine issue to be tried:

4. Plaintiffs=3D show +Life Without Shame+ has in the past included = programming=20 consisting of the following: (a) repeated = nudity,=20 including topless female dancers, (b) simulated acts of sex, (c) = simulated acts=20 of masturbation, (d) repeated use of language such as +fuck+, +shit+, = +ass+,=20 +tits+, and +dick+, (e) repeated advertisements for strip clubs, = +escort+=20 services and +1-800+ phone-sex hotlines, (f) advertisements for stores = selling=20 sexual devices, (g) repeated close-up camera shots of both clothed and = unclothed=20 breasts and buttocks, (h) full frontal nudity, and (i) the use of=20 double-entendre highly suggestive of sexual acts.

6. The tapes the +Best of Lookers+ and +The All Black Special+ each = contain=20 programming of the kind detailed in (4) above.

(Time Warner Statement of Material Facts pursuant to Rule 56 of the = Local=20 Rules for the Western District of New York (+Rule 56 Statement+) 4 and = 6.)=20 Although plaintiffs, in opposition to defendants=3D summary judgment = motion,=20 argued that the segments in question, and the language used in them, = were not=20 indecent within the meaning of 47 U.S.C. 532(h) (1994) or the Time = Warner=20 Indecency Policy, they did not dispute the factual assertions in 4 and 6 = of Time=20 Warner=3Ds Rule 56 Statement.

Time Warner also submitted affidavits stating that since +Life = Without Shame+=20 began airing, TW Syracuse and TW Rochester had received several objections to the show=3Ds content from local = religious and=20 political leaders. Those divisions had also received hundreds of letters = and=20 telephone calls from cable subscribers objecting to the show, = as well as requests from more than 1500 = subscribers in=20 the Syracuse area and 800 in Rochester for traps to block the = transmission of=20 the pertinent leased access channels.

As to plaintiffs=3D contention that Time Warner should permit = resubmission of=20 edited tapes, Time Warner submitted affidavits stating that the cost = would be=20 excessive. It stated that the cost of pre-screening submitted programs = was more=20 than twice the amount of the fee charged by Time Warner for use of the = leased=20 access channels, and it contended that the Act did not require it to = identify=20 for programmers each part of a program that was obscene or patently = offensive=20 under community standards. Asserting that the 1992 Act was = intended=20 to accord cable operators significant flexibility in administering = leased access=20 channels, Time Warner argued that the 1992 Act neither required it to = review=20 edited versions of programming already deemed indecent nor prevented it = from=20 suspending programmers who submitted indecent material. TW also pointed = out that=20 Loce and Richter, in their 1997 lease agreements, had certified that = they would=20 comply with the Indecency Policy.

In a comprehensive Decision and Order dated September 11, 1997 = (+Decision+),=20 the district court granted summary judgment dismissing most of = plaintiffs=3D=20 claims, but upheld their challenge to the suspension provisions. It = dismissed=20 the First Amendment claims on the ground that Time Warner=20 was not a state actor because its contested action had not been = +compelled by=20 the State.+ Decision at 18. It dismissed plaintiffs=3D = statutory=20 challenges to Time Warner=3Ds rejections of +The Best of Lookers+ and = +The All=20 Black Special+ pursuant to its Indecency Policy, reasoning that the 1992 = Act=20 requires reviewing courts to accord a +presumption of reasonableness+ to = the=20 decisions of cable operators, Decision at 31, that determinations of = +indecency+=20 are essentially factual in nature, and that Time Warner=3Ds=20 indecency determinations were not unreasonable given that the tapes = contained +a=20 number of examples of activities that could be said to fall within the=20 definition of the term =3Dindecent programming=3D including simulated = acts of sex=20 and masturbation,+ id. at 33.

The court held that Time Warner=3Ds refusal to telecast +A Tribute to = Violence+=20 was likewise a reasonable exercise of Time Warner=3Ds general authority = under the=20 1992 Act to refuse to transmit programming that is +filthy+ or = +indecent+:

+A Tribute to Violence+ contains an incessant barrage of horrifying = scenes=20 depicting real-life violence. Not only do most of the scenes contain = disturbing=20 images of violence, but many of the scenes also depict degrading acts = such as a=20 woman being beaten with a meat tenderizer, or paraplegics being forced = to combat=20 one another for sport. A cable operator applying just about any = community=20 standard could easily find this compilation +foul,+ +putrid,+ and = +offensive to=20 manners or morals.+ Given the nature of this episode, I find that Time = Warner=20 was justified in refusing to broadcast it over its leased access = channels.

Decision at 35 (quoting Webster=3Ds Ninth New Collegiate = Dictionary).

The district court also rejected plaintiffs=3D contentions that Time = Warner=3Ds=20 procedures with respect to its consideration of proffered programs were=20 unreasonable. The court held that Time Warner = had no=20 obligation to +serve as assistant editors+ in order to allow programmers = to edit=20 and resubmit rejected programs, concluding that Time Warner=3Ds policy = prohibiting=20 editing and resubmission is not per se = unreasonable. The Cable Act of 1992 gave cable companies the = right to=20 censor leased access programs, not the obligation to serve as = assistant=20 editors to program providers. Nor does the Act require cable = companies to=20 work with program providers to ensure that material submitted to the = company is=20 decent. Instead, cable companies may simply refuse to transmit indecent=20 material. Given the broad discretion and deference afforded cable = companies=20 under the Cable Act, I find Time Warner=3Ds policy to be = reasonable.

Decision at 30 (emphasis added).

However, the court upheld plaintiffs=3D claims that the Indecency = Policy=3Ds=20 provision for suspensions of program suppliers, not just for the = rejection of=20 programming, violated the Cable Act. The district court stated that = [t]he=20 purpose of the Cable Act of 1992 was to ban programs, not programmers. . = . . The=20 six-month and life-time bans however, punish program providers in a = manner not=20 contemplated by the statute by cutting off access to the leased access = channels.=20 No support for such a sanction is found in either the statute or the=20 regulations. Banning the program is the ultimate sanction contemplated = by the=20 Act.

Decision at 26. The court rejected Time Warner=3Ds argument that the = suspension=20 provisions were necessary for inexpensive enforcement of the Indecency = Policy.=20 The court reasoned that the ultimate sanction of keeping a program off = the air=20 was sufficiently +effective in that it denies program providers the = opportunity=20 to present their programs and maintain commercial support, and also = allows the=20 cable company to keep indecent material off of its leased access = channels.+=20 Id. It stated that any expense of = reviewing=20 program content was +part of the price for the privilege to regulate the = leased=20 access [channels].+ Id. at 27. Accordingly, the court declared so = much of=20 the Indecency Policy as called for the suspension of program providers, = rather=20 than the rejection of submitted programs, void as violative of the Cable = Act.

The district court also found flawed the Indecency Policy requirement = that=20 programmers certify that they would +not submit for cablecast any = programming=20 that is obscene or indecent as defined herein+ (Indecency Policy 4), = given that=20 the Policy defined +indecent programming+ in terms of what +the cable = operator reasonably believes describes or depicts+ patently = offensive=20 material (Indecency Policy 2 (emphasis added)). The court found this=20 certification requirement unreasonable because it=20 required a programmer to guess how Time Warner would feel about his = program and=20 exposed him to a penalty for simply guessing wrong.

Although this is absolutely true, what hypocrisy that this case = exists=20 largely because the court is doing the same thing. Wouldn=3Dt it be nice = if you=20 could write a rule, and then go to a court and ask them +will this = satisfy you?+=20 It would save everybody a lot of money! But the fact is decent, moral = people are=20 penalized for guessing wrong, and the penalties are = huge!

The court noted, however, that if the phrase +cable operator = reasonably=20 believes+ were deleted, the certification provision would be valid. Time = Warner=20 has not challenged the court=3Ds ruling on the certification provision = and has=20 informed us that it has since modified the Policy by deleting the = offending=20 phrase.

The district court dismissed all of plaintiffs=3D other claims. The = final=20 judgment +permanently enjoin[s defendants] from enforcing the suspension = provisions of its written policy prohibiting broadcast of indecent = material.+=20 (Judgment dated December 12, 1997.) These appeals followed.

II. DISCUSSION

On their appeal, plaintiffs challenge so much of the district = court=3Ds=20 judgment as dismissed their claims under the First Amendment and their = claims=20 asserting that Time Warner violated the Cable Act by rejecting the three = programs in question and by not facilitating resubmission of the = programs after=20 modification. Time Warner, on its cross-appeal, challenges so much of = the=20 judgment as declares the suspension provisions unlawful and enjoins = their=20 application. For the reasons that follow, we reject both sides=3D = challenges.

A. The Statutory Provisions Governing Leased Access=20 Channels

The 1984 Act included two provisions with regard to editorial control = over=20 programs cablecast on leased access channels. It provided that +[a] = cable=20 operator shall not exercise any editorial control over any video = programming [on=20 leased access channels], or in any other way consider the content of = such=20 programming,+ 47 U.S.C. 532(c)(2) (1994); and it provided that +the = franchising=20 authority+ could prohibit or impose conditions on the transmission of = material=20 that +in the judgment of the franchising authority is obscene, or is = in=20 conflict with community standards in that it is lewd, lascivious, = filthy, or=20 indecent or is otherwise unprotected by the Constitution of the United=20 States,+ 47 U.S.C. 532(h) (1988).

In section 10(a) of the Cable Act of 1992, Congress amended 532(h) to = give=20 cable operators limited authority to control editorial content of = programs=20 transmitted on leased access channels. See 1992 Act, Pub. L. No. = 102-385,=20 10(a), 106 Stat. 1460, 1486. As thus amended, 532(h) provides as = follows:

Any cable service offered pursuant to this section shall not be = provided, or=20 shall be provided subject to conditions, if such cable service in the = judgment=20 of the franchising authority or the cable operator is obscene, or is in = conflict=20 with community standards in that it is lewd, lascivious, filthy, or = indecent or=20 is otherwise unprotected by the Constitution of the United States. This=20 subsection shall permit a cable operator to enforce prospectively a = written and=20 published policy of prohibiting programming that the cable operator = reasonably=20 believes describes or depicts sexual or excretory activities or organs = in a=20 patently offensive manner as measured by contemporary community = standards.

47 U.S.C. 532(h) (1994). Consistent with this 1992-amended version of = 532(h),=20 Congress in 1996 amended 532(c)(2) (which theretofore had forbidden = cable=20 operators to exercise any editorial control over or to consider the = content of=20 programming on leased access channels), by adding the exception that +a = cable=20 operator may refuse to transmit any leased access program or portion of = a leased=20 access program which contains obscenity, indecency, or nudity,+ 47 = U.S.C.=20 532(c)(2) (Supp. II 1996).

In 1996, in Denver Area Educational Telecommunications Consortium, = Inc. v.=20 FCC, 518 U.S. 727 (+Denver Area+), the Supreme Court rejected = a=20 facial challenge to the constitutionality of the 1992-amended version of = 532(h)=20 that granted limited editorial control to cable operators. See = 518 U.S.=20 at 737-53 (plurality opinion of Breyer, J.); id. at 819-26 = (Thomas, J.,=20 concurring in the judgment in part and dissenting in part). It was in = the wake=20 of the Denver Area decision that Time Warner adopted its = Indecency Policy=20 pursuant to 532(h).

B. Plaintiffs=3D Claims Under the First Amendment

The First Amendment applies only to state actors. In order to = establish a=20 First Amendment claim against a private entity based on the entity=3Ds=20 relationship to the state, a plaintiff must demonstrate, inter = alia, +a=20 sufficiently close nexus between the State and the challenged action of = the=20 regulated entity so that the action of the latter may be fairly treated = as that=20 of the State itself.+ Jackson v. Metropolitan Edison Co., 419 = U.S.=20 345, 351 (1974). Such a nexus may be found, for example, where a private = actor=20 has operated as a +willful participant in joint activity with the State = or its=20 agents.+ Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982) = (internal=20 quotation marks omitted). In the absence of such a nexus, a finding = of state=20 action may not be premised on the private entity=3Ds creation, funding, = licensing,=20 or regulation by the government. See, e.g., San = Francisco=20 Arts & Athletics, Inc. v. United States Olympic Committee, 483 = U.S. 522,=20 543-44 (1987) (Olympic Committee not a state actor merely because it was = chartered by Congress); Rendell-Baker v. Kohn, 457 U.S. 830, = 840-43=20 (1982) (special private school not state actor merely because of = substantial=20 funding and regulation by state). Nor is a private entity a state = actor=20 merely because its conduct is authorized by a state law, where its = conduct is=20 not compelled by the state. See, e.g., Flagg = Brothers, Inc.=20 v. Brooks, 436 U.S. 149, 164-66 (1978) (no state action where = private=20 storage company threatened to sell plaintiff=3Ds stored goods, as = authorized by=20 state law, to cover unpaid storage fees); Jackson v. Metropolitan = Edison=20 Co., 419 U.S. at 350-51 (electricity provider operating pursuant to=20 state-granted monopoly not a state actor).

Section 532(h) does not compel cable operators to exercise editorial = control=20 over leased-access-channel program content. Notwithstanding the language = of the=20 first sentence of subsection (h), stating that if the franchising = authority or=20 the cable operator judges the program to be obscene or in conflict with=20 community standards, a leased-access-channel program +shall not+ be = transmitted=20 or +shall+ be transmitted only subject to conditions, 47 U.S.C. 532(h) = (1994),=20 the second sentence of that subsection indicates that, with respect to = cable=20 operators, the subsection is permissive. That second sentence says = +[t]his=20 subsection shall permit a cable operator to enforce prospectively = a=20 written and published policy+ of banning programs it reasonably believes = to=20 contain obscene or patently offensive matter as measured by contemporary = community standards. Id. (emphasis added). Accordingly, in = upholding=20 532(h), the Denver Area Court described that subsection as merely = permitting, not requiring, the cable operator to ban programs as to = which it=20 held such a reasonable belief. See, e.g., 518 U.S. at 733, = 745-46=20 (plurality opinion of Breyer, J.); id. at 768, 771 (Stevens, J.,=20 concurring); id. at 779 (O=3DConnor, J., concurring in part and = dissenting=20 in part); id. at 783, 797 (Kennedy J., concurring in part and = dissenting=20 in part). See also Implementation of Section 10 of the Cable = Consumer=20 Protection and Competition Act of 1992, 8 F.C.C.R. 998, 1003 (1993). = The=20 interpretation of 532(h) as permissive is also supported by clear = legislative=20 history. Senator Helms, author of the amendment containing the language = that=20 would eventually be added to 532(h), stated that +[t]he pending = amendment=20 merely gives cable operators the legal right to make that decision. The=20 amendment does not require cable operators to do anything.+ 138 = Cong. Rec.=20 985 (1992).

In the present case, the district court correctly ruled that there = was no=20 basis on which to infer that Time Warner=3Ds Indecency Policy or its = treatment of=20 LWS constituted state action. The fact that federal law requires a cable = operator to maintain leased access channels and the fact that the cable=20 franchise is granted by a local government are insufficient, either = singly or in=20 combination, to characterize the cable operator=3Ds conduct of its = business as=20 state action. Nor does it suffice that cable operators, in their = management of=20 leased access channels, are subject to statutory and regulatory = limitations.

Plaintiffs argue that Time Warner is a state actor because cable = operators=20 and local franchising authorities act as joint venturers in the = administration=20 of leased access channels. But that conclusory assertion is not = supported. The=20 record offers no evidence that Time Warner and the municipal franchising = authorities jointly administer leased access channels. Nor is there any=20 suggestion that the franchise agreements reserve to the franchising=20 municipalities control over Time Warner=3Ds editorial decisions. As = indicated=20 above, Time Warner itself is permitted by 47 U.S.C. 532(h) (1994) and 47 = U.S.C.=20 532(c)(2) (Supp. II 1996) to refuse to transmit leased access = programming that,=20 in its judgment, is obscene, or is in conflict with community standards = in that=20 it is lewd, lascivious, filthy, or indecent. Time Warner presented = evidence as=20 to its formulation and implementation of the Indecency Policy; there is = no=20 indication in the record of any assistance from or supervision by = municipal,=20 state, or federal authorities, and plaintiffs presented no evidence of = any=20 governmental participation. Similarly, there is no evidence that Time = Warner=3Ds=20 determinations that the three shows in question were indecent were made = with any=20 input or influence from a government. Although Time Warner received=20 complaints from civic leaders, there is no indication in the record that = it=20 received any order, instruction, or request for editorial control from = the=20 franchising municipalities or any other government.

In sum, plaintiffs presented no evidence from which a rational = factfinder=20 could infer joint action between Time Warner and any government with = respect to=20 the content of leased-access-channel programming. We conclude that the = district=20 court properly dismissed plaintiffs=3D First Amendment claims.

Explanation: a government bureaucrat has less authority to censor = free speech=20 on his premises than a private business. Government can censor only by = enforcing=20 criminal laws. But private businesses have discretion to ban, from their = private=20 property, speech which is perfectly legal -- not prosecutable. =

C. Plaintiffs=3D Claims Under the Cable Act

The Cable Act provides that +[a]ny person aggrieved by the failure or = refusal=20 of a cable operator to make channel capacity available for use pursuant = to+ 532=20 may bring an action in federal court +to compel that such capacity be = made=20 available.+ 47 U.S.C. 532(d) (1994). In such an action, the court = may order=20 appropriate relief if it +finds that the channel capacity sought by such = person=20 has not been made available in accordance with [ 532], or finds that the = price,=20 terms, or conditions established by the cable operator are = unreasonable.+=20 Id. The Act also provides that in such an action, +there shall be = a=20 presumption that the price, terms, and conditions for use of [leased = access]=20 channel capacity . . . are reasonable and in good faith unless shown by = clear=20 and convincing evidence to the contrary.+ Id. 532(f) = (1994).

Plaintiffs contend that the district court erred in ruling that Time = Warner=3Ds=20 refusals to transmit the three episodes in question were permissible = under the=20 Cable Act. They argue principally that +The Best of Lookers+ and +The = All Black=20 Special+ could not properly be rejected because they do not contain = depictions=20 of oral sex, bestiality, or rape, ...

...and because the shows would have been telecast late at night with = minimal=20 risk that children would be watching; and they argue that +A Tribute to=20 Violence+ could not properly be rejected because it included no sexual = or=20 excretory depictions or descriptions. They also contend that Time = Warner=3Ds=20 refusal to identify for LWS the objectionable portions of the submitted=20 programs, to facilitate editing and resubmission, was unreasonable. We=20 disagree.

1. Reasonableness of Rejection

As detailed in Part II.A. above, by 1997, when plaintiffs submitted = the=20 episodes in question to Time Warner, the Cable Act allowed a cable = operator to=20 refuse to transmit on a leased access channel any program that +contains = obscenity, indecency, or nudity,+ 47 U.S.C. 532(c)(2) (Supp. II 1996); = it=20 allowed the operator to deny leased-channel access or to provide access=20 +subject to conditions+ if the proffered program +in the judgment of = . . .=20 the cable operator is obscene, or is in conflict with community = standards in=20 that it is lewd, lascivious, filthy, or indecent or is otherwise = unprotected by=20 the Constitution of the United States,+ id. 532(h) (1994); = and it=20 allowed the operator to +enforce prospectively a written and published = policy of=20 prohibiting programming that the cable operator reasonably believes = describes or=20 depicts sexual or excretory activities or organs in a patently offensive = manner=20 as measured by contemporary community standards,+ id.

In amending 532(h) in 1992, Congress sought to address, inter = alia,=20 +sexually explicit programs+ such as +depict[ions of] men and women = stripping=20 completely nude,+ +explicit sex ads,+ +incest, beastiality [sic], = even=20 rape,+ +oral sex,+ and +strip shows,+ 138 Cong. Rec. 985, 986 (1992) = (statement=20 of Sen. Helms, author of the amendment); +porn shows with ads for phone = lines=20 that promised to let listeners eavesdrop on acts of incest,+ and +sex = shows and=20 X-rated previews of hard-core homosexual films,+ id. at 987 = (statement of=20 Sen. Thurmond, a principal cosponsor of the amendment); and +hard core=20 pornography,+ id. at 988 (statement of Sen. Coats, a principal = cosponsor=20 of the amendment). The Act was intended to reach more than simply = obscene=20 programming, as defined by the Supreme Court in obscenity cases, = see,=20 e.g., Miller v. California, 413 U.S. 15, 24 (1973) = (material that=20 +portray[s] sexual conduct in a patently offensive way,+ and that +taken = as a=20 whole, appeal[s] to the prurient interest in sex,+ and that +taken as a = whole,=20 do[es] not have serious literary, artistic, political, or scientific = value+),=20 for the language of 532(h) reaches material that +would be offensive = enough to=20 fall within that category+ despite the fact that it has serious value = or has=20 nonprurient purposes, Denver Area, 518 U.S. at 751-52 = (plurality=20 opinion of Breyer, J.). The legislative history reveals that the = language of=20 532(h) was patterned after the definition of +indecent+ material, as = first=20 adopted by the Federal Communications Commission (+FCC+) and judicially = approved=20 in the broadcast context. That agency characterized as +indecent+ = language that=20 is not necessarily prurient but that describes +sexual or excretory = activities=20 and organs+ in terms that are +patently offensive as measured by = contemporary=20 community standards.+ Pacifica Foundation, 56 F.C.C.2d 94, 98 = (1975)=20 (+Pacifica I+); see also Regulations Concerning = Indecent=20 Communications by Telephone, 5 F.C.C.R. 4926, 4927 (1990) (same = definition=20 in context of commercial telephone messages). The FCC=3Ds view of = indecency as=20 extending beyond obscenity was upheld by the Supreme Court in FCC = v.=20 Pacifica Foundation, 438 U.S. 726, 740 (1978) (+Pacifica II+) = (+[p]rurient appeal is an element of the obscene, but the normal = definition of=20 =3Dindecent=3D merely refers to nonconformance with accepted standards = of=20 morality+). And in describing the proposed (and eventually adopted) 1992 = amendment to 532(h), its author stated that the proposed language was = +exactly=20 the same as the FCC definition [of indecency] which was upheld by the = Supreme=20 Court.+ 138 Cong. Rec. 985 (1992) (statement of Sen. Helms).

The FCC has noted that the Cable Act confers on cable operators +wide = discretion to determine the manner in which they may enforce a policy of = prohibiting indecent leased access programming.+ Implementation of = Section 10=20 of the Cable Consumer Protection and Competition Act of 1992, 8 = F.C.C.R. at=20 1002-03. Thus, although material that is patently offensive may be less = so if=20 shown in late-night hours when children are less likely to see it, = see,=20 e.g., Denver Area, 518 U.S. at 752 (plurality opinion of = Breyer,=20 J.); Pacifica II, 438 U.S. at 750, section 532(h) permits cable = operators=20 not only to confine indecent material to late-night programming but also = permits=20 them to prohibit such material entirely, see Denver Area, = 518 U.S.=20 at 746 (plurality opinion of Breyer, J.).

Whether offensive material can be prohibited under 532(h) depends, in = large=20 part, on its context. See Denver Area, 518 U.S. at 752 = (plurality opinion of Breyer, J.); see also Pacifica II, = 438 U.S.=20 at 750; Infinity Broadcasting Corp., 2 F.C.C.R. 2705, 2705 (1987) = (+Infinity I+) (+what is indecent =3Dis largely a function of = context=3D=20 and cannot adequately be judged in the abstract+). In addition, the = FCC has=20 noted that while the indecency concept does not justify a ban of an = entire=20 program because of +the isolated use of an offensive word,+ = Infinity=20 I 2 F.C.C.R. at 2705, neither need there be a constant stream of = sexual=20 or excretory depictions before a program may be banned, see=20 Pacifica Foundation, Inc., 2 F.C.C.R. 2698, 2699 (1987) = (+Pacifica=20 III+). That agency has declined to +attempt to provide = [broadcasters]=20 with a comprehensive index or thesaurus of indecent words or pictoral = depictions=20 that will be considered patently offensive,+ Infinity = Broadcasting=20 Corp., 3 F.C.C.R. 930, 931-32 (1987) (+Infinity II+), and it = has=20 noted that the assertion that sexually-oriented programming involves = merely=20 innuendo or double entendre does not mean that it falls outside the = category of=20 the patently offensive and indecent. See Infinity I, 2 = F.C.C.R. at 2705-06.

Within this framework, the district court properly concluded that = there was=20 no genuine issue of fact to be tried as to the reasonableness of Time = Warner=3Ds=20 rejection of the three LWS episodes in question. +The Best of Lookers+ = and +The=20 All Black Special+ included the scenes described in Part I.B. above, and = plaintiffs did not dispute Time Warner=3Ds Rule 56 Statement assertion = that those=20 episodes contained such features as repeated nudity, including close-up = camera=20 shots of unclothed breasts and buttocks; simulated acts of sex and = masturbation;=20 advertisements for strip clubs, +escort+ services, +1-800+ telephone-sex = hotlines, and stores selling sexual devices; and double-entendre highly=20 suggestive of sexual acts, as well as repeated use of language such as = +tits,+=20 +ass,+ +dick,+ and +shit.+ On this record, no rational factfinder could = find=20 that Time Warner=3Ds belief that +The Best of Lookers+ and +The All = Black Special+=20 depicted sexual activities or organs in a patently offensive manner as = measured=20 by contemporary community standards was not reasonable.

Nor are we persuaded by plaintiffs=3D argument that Time Warner=3Ds = rejection of=20 +A Tribute to Violence+ was not reasonable because that episode = concerned only=20 violence and not sex, for plaintiffs=3D factual premise is belied by the = tape=20 itself. In addition to being laced with advertisements for strip clubs = and an=20 +escort+ service, the episode is replete with blatantly sexual innuendo. = For=20 example, in narrating one scene, Loce and Richter refer to a = +=3DPedophile=3D=20 organization.+ In the scene from +The Gore Gore Girls,+ the woman shown = being=20 savaged is wearing a partially see-through bikini; Loce repeatedly = refers to her=20 +ass+; and when the beaten woman lies bent over a table, Richter states, = and=20 Loce agrees, +that=3Ds my favorite position of a woman.+ Similarly, in = the scene=20 depicting the fight between amputees, Loce and Richter discuss = Richter=3Ds=20 penchant for amputees; and Richter states his view that +amputees are = the best+=20 and that +[u]ntil you=3Dve gone with an amputee, you haven=3Dt gone,+ = and his=20 rationale that with a woman +you don=3Dt have to hold the legs = back.+

Plaintiffs did not adduce any evidence from which a rational = factfinder could=20 find that Time Warner=3Ds rejection of +A Tribute to Violence+ on the = ground of=20 indecency was not reasonable. No rational factfinder could fail to see = the=20 sexual connotations in +A Tribute to Violence,+ and neither the fact = that its=20 sexual content is less constant than in +The Best of Lookers+ and +The = All Black=20 Special,+ nor the fact that it consists largely of double-entendres and = innuendo=20 rather the sexually oriented or scatological words used in +The Best of = Lookers+=20 and +The All Black Special,+ sufficed to undermine Time Warner=3Ds view = of +A=20 Tribute to Violence+ as patently offensive under the prevailing = community=20 standards or to make rejection of the episode unreasonable.

We conclude that the district court properly ruled that plaintiffs = were not=20 entitled to either declaratory or injunctive relief requiring Time = Warner to=20 transmit the three episodes in question.

2. The Reasonableness of Time Warner=3Ds Procedures

Plaintiffs also contend that the district court erred in rejecting = their=20 claims that Time Warner=3Ds procedures are unreasonable because Time = Warner does=20 not identify for programmers what parts of the submission it deems = obscene or=20 indecent in order to allow the programmer to edit and resubmit the = program. The=20 district court rejected this claim on the ground that the Cable Act = imposes no=20 obligation on a cable operator to work with a programmer in the program = editing=20 process. We agree substantially for the reasons stated in the district = court=3Ds=20 Decision.

We note, in passing, however, that we do not regard the district = court as=20 having given Time Warner carte blanche to refuse even to consider = programming=20 that has been rejected, has thereafter been substantially edited to = remove the=20 obscene or patently offensive material, and is then resubmitted. The = question of=20 whether such a refusal would be permissible was not squarely presented.=20 The Time Warner Indecency Policy, though = containing=20 (the now invalidated) provisions for the suspension of = programmers who=20 had submitted programs that Time Warner rejected pursuant to the Policy, = did not=20 state that a once-rejected program could not be edited to remove the = offending=20 material and then resubmitted. Nor = did=20 plaintiffs make any effort to resubmit any of the three rejected = episodes.=20 (Plaintiffs advised the district court that if the portions of +The Best = of=20 Lookers+ and +The All Black Special+ depicting topless women were = removed, there=20 would be little left.) And although the district court = referred to the=20 Time Warner Indecency Policy as not allowing resubmissions, the = court=3Ds=20 rationale for dismissing this claim was simply that the Cable Act gives = cable=20 companies +the right to censor leased access programs, not the = obligation to=20 serve as assistant editors to program providers+ or the obligation +to = work with=20 program providers to ensure that material submitted to the company is = decent.+=20 Decision at 30.

Perhaps another case like this won=3Dt be necessary. This case = established the=20 right of a cable company to define +obscenity+ more narrowly than a = court, so=20 one would think a clear, comprehensive list of prohibited scenes, which = could=20 borrow heavily from the lists in this case, would stand up in court no = matter=20 where the line was drawn. One would think even that, to avoid ambiguity, = a +zero=20 tolerance+ policy would stand for the items on this list. (Or at least = that=20 should any one of these things exist in a submitted tape, the = application with=20 it must say what it is and where in the hour it is, so that cable = company=20 reviewers can find it quickly and make their decision.) On the other = hand, this=20 ruling referred to its own ambiguity about what it will permit when it = said=20 +Whether offensive material can be prohibited under 532(h) = depends, in=20 large part, on its context. See Denver Area, 518 U.S. = at 752=20 (plurality opinion of Breyer, J.); see also Pacifica II, = 438 U.S.=20 at 750; Infinity Broadcasting Corp., 2 F.C.C.R. 2705, 2705 (1987) = (+Infinity I+) (+what is indecent =3Dis largely a function of = context=3D=20 and cannot adequately be judged in the abstract+). In addition, the = FCC has=20 noted that while the indecency concept does not justify a ban of an = entire=20 program because of +the isolated use of an offensive word,+ = Infinity=20 I 2 F.C.C.R. at 2705, neither need there be a constant stream of = sexual=20 or excretory depictions before a program may be banned, see=20 Pacifica Foundation, Inc., 2 F.C.C.R. 2698, 2699 (1987) = (+Pacifica=20 III+). That agency has declined to +attempt to provide = [broadcasters]=20 with a comprehensive index or thesaurus of indecent words or pictoral = depictions=20 that will be considered patently offensive,+ Infinity = Broadcasting=20 Corp., 3 F.C.C.R. 930, 931-32 (1987) (+Infinity II+), and it = has=20 noted that the assertion that sexually-oriented programming involves = merely=20 innuendo or double entendre does not mean that it falls outside the = category of=20 the patently offensive and indecent. See Infinity I, 2 = F.C.C.R. at 2705-06.+ When a court = refuses to define=20 its terms sufficiently that the only guidance the next case has is to = peel off=20 another million dollars to come before it again, the court gives = +guidance+=20 which, by any reasonable standard, is +constitutionally vague+. Perhaps = the=20 solution we should press for is to, well, since courts themselves say = +patently=20 offensive to the community+ is their ultimate standard, duh, how about=20 consulting the community? How about amending the law to permit a cable = company,=20 if it desires, to establish a board of community representatives? Just = for=20 example, to get on the board you would have to have the signatures of 50 = cable=20 subscribers who want you on, and everyone with the 50 signatures would = be on,=20 and would vote on controversies. Just an example. Anything to get courts = out of=20 the business of deciding things they have no heart to decide, at a = million=20 dollars a pop. On the OTHER other hand, the Court seems to place the = burden on=20 others of proving the cable company wrong when it concludes this case, = +Time=20 Warner remains free in accordance with 532(c)(2) and (h) to reject any = program=20 it reasonably believes is obscene or patently offensive as measured by=20 contemporary community standards.+

D. The Suspension Provisions

In its cross appeal, Time Warner contends that the district court = erred in=20 construing the Cable Act as not authorizing cable operators to suspend = persons=20 who have submitted indecent programming. TW argues that that = interpretation of=20 532 unduly restricts its flexibility in enforcing the Indecency Policy = and that=20 a practice of tape-by-tape review would be unduly expensive. We reject = these=20 contentions substantially for the reasons stated in the district = court=3Ds=20 Decision.

As discussed in the preceding sections, the editorial control given = to cable=20 operators under 532(c)(2) and 532(h) is limited. As this Court has noted = with=20 respect to the public access counterpart to 532(c)(2), i.e., 47 = U.S.C.=20 531(e) (Supp. II 1996), a +refusal to broadcast = all of [a programmer=3Ds] future programming,+ far from = exercising limited=20 control, would constitute +the strongest and broadest possible form of = editorial=20 control.+ McClellan v. Cablevision of Connecticut, = Inc., 149=20 F.3d 161, 168 n.14 (2d Cir. 1998) (emphasis in original). We see no = indication=20 that Congress, in fashioning 532(h) to give a cable operator limited = authority=20 to prohibit +programming+ described by that section, intended that = section or=20 any other to authorize the cable operator to impose a blanket ban on all = programs (irrespective of content) of a given program supplier. Indeed, = in=20 requiring cable operators to provide leased access channels, Congress sought principally to assure the widest = possible=20 diversity of information sources on cable systems. See = 47=20 U.S.C. 532(a) (1994). A cable operator=3Ds exclusion of a given supplier = would,=20 instead, plainly limit the number of potential program sources. Finally, = we see no indication that Congress meant to = imply that a=20 cable operator could reasonably believe any given program to be patently = offensive solely because of its source. Nor does the = present=20 record suggest that Time Warner could be justified in such a belief with = respect=20 to LWS. As noted in Part I.B. above, LWS for a period of time submitted = shows to=20 TW Rochester that were not deemed indecent under TW=3Ds Indecency = Policy.

In sum, we reject Time Warner=3Ds contention that the Act authorizes = it to=20 foreclose the submission of programs based solely on source, without = regard to=20 whether they contain material whose prohibition is authorized by = 532(c)(2) and=20 (h). As the district court concluded,

Decision at 26.

Finally, although Time Warner argues that a tape-by-tape review = process will=20 be unduly expensive, we note that 532(c)(1) allows a cable operator = to=20 +establish, consistent with the purpose of [ 532]+ and with such rules = as are=20 prescribed by the FCC, +price, terms and conditions of = [leased-access-channel]=20 use which are at least sufficient to assure that such use will not = adversely=20 affect the operation, financial condition, or market development of the = cable=20 system.+ 47 U.S.C. 532(c)(1) (1994). (See also = Plaintiffs=3D brief=20 on appeal at 40 (suggesting, as an +appropriate+ approach, +a regime of = fines or=20 penalties to cover additional costs for a second screening+).) In = light of=20 532 as a whole, we cannot conclude that Congress intended to permit = cable=20 operators to exclude program suppliers because of the expense of = determining=20 whether their products should be excluded in accordance with 532(c)(2) = and=20 (h).

We conclude that the district court properly ruled that the = suspension=20 provisions violated the Act. Time Warner remains free in accordance with = 532(c)(2) and (h) to reject any program it reasonably believes is = obscene or=20 patently offensive as measured by contemporary community = standards.

CONCLUSION

We have considered all of the parties=3D contentions in support of = their=20 respective appeals and have found them to be without merit. The judgment = of the=20 district court is affirmed.

1. * Honorable Milton Pollack, of the United States District Court = for the=20 Southern District of New York, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1997

(Argued: January 27, 1998 Decided: July 17, 1998)

Docket No. 97-7156

----------------------------------------

JERRY MCCLELLAN, JONATHAN COOPER,

and NOTU BAYONNE,

Plaintiffs-Appellants,

v.

CABLEVISION OF CONNECTICUT, INC.,

CABLEVISION OF CONNECTICUT, LIMITED

PARTNERSHIP, and CABLEVISION SYSTEMS

OF SOUTHERN CONNECTICUT, L.P.,

Defendants-Appellees,

----------------------------------------

Before: CALABRESI, CABRANES, and HEANEY, \l=20 +N_1_+ Circuit Judges.

Appeal from judgment of the United States District Court for District = of=20 Connecticut, Peter C. Dorsey, Chief Judge, dismissing the = complaint of=20 Jerry McClellan, et al., alleging Cable Communications Policy Act and = state=20 Unfair Trade Practices Act violations by Cablevision of Connecticut, = Inc. et al.=20 Reversed and remanded.

LOUIS N. GEORGE, Hassett, George & Siegel, P.C., Hartford, = Connecticut=20 for Plaintiffs-Appellants.

JAMES F. STAPLETON, Day, Berry & Howard, Stamford Connecticut = (Allan B.=20 Taylor and Jonathan B. Tropp, Day, Berry & Howard, Stamford = Connecticut, of=20 counsel) for Defendants-Appellees.

ROBERT T. PERRY, Brooklyn, New York (Brian D. Graifman, Caro & = Graifman,=20 New York, New York, of counsel) for Amicus Curiae Media Access = New=20 York.

HEANEY, Circuit Judge:

I.

Jerry McClellan, Jonathan Cooper, and Notu Bayonne (collectively=20 +appellants+) appeal from the January 6, 1997 order of the United States = District Court for the District of Connecticut (Peter C. Dorsey, = Chief=20 Judge) dismissing their complaint which alleged violations of the = Cable=20 Communications Policy Act (+CCPA+), 47 U.S.C. =A7=A7 521-573, and the = Connecticut=20 Unfair Trade Practices Act (+CUTPA+), Conn. Gen. Stat. =A7=A7 42-110a to = 42-110q, by=20 Cablevision of Connecticut, Inc.; \l = +N_2_+=20 Cablevision of Connecticut, L.P.; and Cablevision of Southern = Connecticut, L.P.=20 (collectively +Cablevision+). In its order, the district court held that = the=20 CCPA does not provide a private cause of action for the violations = alleged by=20 appellants and that, in the absence of a federal claim, supplemental=20 jurisdiction over appellants=3D CUTPA claims would be improper. Because = we hold=20 that the CCPA provides an implied private cause of action, we = reverse.

II.

The relevant facts \l +N_3_+ for = this=20 appeal are as follows: Jerry McClellan produced television programming = for=20 broadcast on Cablevision=3Ds public access channels. Bayonne and Cooper = claim that=20 they are viewers of McClellan=3Ds public access programming. According = to=20 Cablevision, McClellan broadcast a show on August = 19, 1996,=20 that contained sexually explicit material.

Citing alleged violations of its rules, \l=20 +N_4_+ Cablevision informed McClellan = that=20 Cablevision=3Ds stations would indefinitely refuse to carry any of = McClellan=3Ds=20 shows on their public access channels. Cablevision also informed = McClellan that=20 he would no longer have access to Cablevision=3Ds public access studio. = On=20 October 10, 1996, appellants brought an action in federal court claiming = violations of the CCPA \l +N_5_+ and = CUTPA. In=20 addition to money damages, appellants requested a temporary restraining = order=20 and preliminary and permanent injunctive relief to prevent Cablevision = from=20 continuing to deny McClellan the use of Cablevision=3Ds public access = studio and=20 from refusing to broadcast McClellan=3Ds programs.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,=20 Cablevision moved the district court for dismissal, arguing that the = CCPA=20 provides no private remedy for violations of 47 U.S.C. =A7 531(e) and = that the=20 district court should not exercise supplemental jurisdiction over the = remaining=20 CUTPA claims. Appellants opposed the motion, responding that =A7 531(e) = contains=20 an implied cause of action.

The district court granted Cablevision=3Ds motion to dismiss, holding = that=20 under Cort v. Ash, 422 U.S. 66 (1975), =A7 531(e) provides no = implied=20 private cause of action. Having dismissed appellants=3D federal claim, = the=20 district court then declined to exercise supplemental jurisdiction over=20 appellants=3D CUTPA claim. See McClellan v. Cablevision of = Conn.,=20 Inc., 949 F. Supp. 97, 102 (D. Conn. 1997) (+McClellan I+). = In=20 reaching its decision, the district court = acknowledged that=20 another district court in this circuit had determined that an implied = cause of=20 action exists under =A7 531(e). See McClellan I, 949 F. = Supp. at=20 99-100 (citing Glendora v. Cablevision Sys. Corp., 893 F. Supp. = 264, 268=20 (S.D.N.Y. 1995)). Nonetheless, the district court concluded that = Denver Area=20 Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 = (1996),=20 undermined the Glendora holding. See McClellan I, = 949 F.=20 Supp. at 99-100. Specifically, the district court relied on = Denver=3Ds=20 emphasis on the +various complex supervisory systems+ to which public = access=20 channels are subject. See McClellan I, 949 F. Supp. = at 100=20 (citing Denver, 518 U.S. at 760-61). Citing the local = +supervisory=20 systems+ for public access channels, and the channels=3D historical = development=20 through state and local law, the district court determined that several = factors=20 identified in Cort do not support a private cause of action under = =A7=20 531(e). See McClellan I, 949 F. Supp. at 100-01.

III.

We review de novo the district court=3Ds grant of a rule 12(b)(6) = motion to=20 dismiss. See Northrop v. Hoffman of Simsbury, Inc., 134 = F.3d 41,=20 44 (2d Cir. 1997) (citation omitted). Granting a motion to dismiss for a = plaintiff=3Ds failure to state a claim is only proper where the court = has no doubt=20 that the plaintiff can prove no set of facts to demonstrate that the = plaintiff=20 is entitled to relief. See id.

The sole question before us in this appeal is whether =A7 531(e) = provides an=20 implied private cause of action for cable = programmers. \l +N_6_+ We agree with the district court = that we=20 determine whether =A7 531(e) contains an implied private remedy by = analyzing the=20 statute under the four-prong analysis provided by Cort. = See=20 Cort, 422 U.S. at 78. Under Cort, we = first=20 determine whether the plaintiff is one for whose +especial+ benefit = Congress=20 enacted the statute. Id. (citation omitted). Second, we examine = whether=20 there is any indication of an explicit or implicit legislative intent to = create=20 or deny a private remedy. See id. (citation omitted). = Third, we=20 consider whether implying a private remedy is consistent with the = +underlying=20 purposes of the legislative scheme.+ Id. (citations omitted). = Fourth, we=20 determine whether the cause of action is one +traditionally relegated to = state=20 law, in an area basically the concern of the States, so that it would be = inappropriate to infer a cause of action based solely on federal law.+=20 Id. (citations omitted).

Recent Supreme Court decisions have refocused the Cort = analysis to=20 +emphasize the centrality of the second factor-- congressional intent,+ = treating=20 the other factors as +proxies for legislative intent.+ DiLaura v. = Power Auth.=20 of N.Y., 982 F.2d 73, 77-78 (2d Cir. 1992) (quoting Health Care = Plan,=20 Inc. v. Aetna Life Ins. Co., 966 F.2d 738, 740 (2d Cir. 1992) and = citing=20 Karahalios v. National Fed=3Dn of Fed. Employees, Local 263, 489 = U.S. 527,=20 532-33 (1989); Thompson v. Thompson, 484 U.S. 174, 179 (1988); = Touche=20 Ross & Co. v. Redington, 442 U.S. 560, 575-76 (1979)). We conclude that the legislative record demonstrates = Congress=3Ds=20 intent to provide a private cause of action under =A7 531(e), and that = the=20 remaining Cort factors support our conclusion.

A.

Under the first factor, it is clear that McClellan is within the = class of=20 intended beneficiaries of =A7 531(e)=3Ds prohibition of editorial = control over=20 public access channels. In enacting =A7 531(e), Congress was keenly = aware that=20 individuals or organizations, other than licensees or owners of various=20 electronic media, do not always have access to those media. See = H.R. Rep.=20 No. 98-934, at 30 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, = 4667. The=20 legislative history states that:

Id. Thus, the core First Amendment rights of individual speakers = were of=20 paramount concern to Congress. Moreover, Congress has explained that = +[a]=20 requirement of reasonable third-party access to cable systems will mean = a wide=20 diversity of information sources for the public--the fundamental goal of = the=20 First Amendment.+ Id.; see also 47 U.S.C. =A7 521(4) = (stating that=20 the CCPA promotes +the widest possible diversity of information sources = and=20 services to the public+); cf. Time Warner Cable of N.Y.C. v. = Bloomberg=20 L.P., 118 F.3d 917, 929 (2d Cir. 1997) (+[M]uch of [public access]=20 programming has a limited, often specialized audience whose needs are = not=20 otherwise met.+). Because Congress prohibited cable operators [ie. = Mediacom]=20 from exercising editorial control over public access programming and = because=20 Congress clearly concerned itself with the interests of producers of = programs=20 broadcast on public access channels, we conclude that the appellant = falls within=20 the class of intended beneficiaries of =A7 531(e).

B.

Second, there is an implicit legislative intent to create a private = cause of=20 action to enforce the rights established under =A7 531(e). +[I]n = situations in=20 which it is clear that federal law has granted a class of persons = certain rights=20 [as Congress has under =A7 531(e)], it is not necessary to show an = intention to=20 create a private remedy, although an explicit purpose to = deny such=20 cause of action would be controlling.+ Cort, 422 U.S. at 82 = (emphasis in=20 original) (footnote omitted).

Although =A7 531(e) does not expressly create or deny a private cause = of=20 action, the district court relied on Touche Ross, 442 U.S. at = 572, to=20 conclude that because Congress specifically provided private remedies in = other=20 sections of the CCPA, it purposefully withheld a private cause of action = under =A7=20 531(e). See McClellan I, 949 F. Supp. at 101; see=20 also 47 U.S.C. =A7 532(d) (providing a cause of action in federal = court for=20 any person aggrieved by a cable operator=3Ds refusal to make channel = capacity=20 available for leased access). The district court stated, +when Congress = wished=20 to provide a private damage remedy, it knew how to do so and did so = expressly.+=20 McClellan I, 949 F. Supp. at 101 (quoting Touche Ross, 442 = U.S. at=20 572).

In our view, Touche Ross is distinguishable from the present = case. In=20 Touche Ross, the Supreme Court considered whether 15 U.S.C. =A7 = 78q(a)=20 provided an implied private cause of action for those claiming injury by = an=20 accountant=3Ds failure to maintain certain records and reports. = See=20 Touche Ross, 442 U.S. at 568. In reasoning that =A7 78q(a) = provided no=20 implied private cause of action, the Court noted that in cases where it = had=20 found an implied private cause of action, +the statute in question at = least=20 prohibited certain conduct or created federal rights in favor of private = parties.+ Id. at 569 (citations omitted). The Court found that = =A7 78q(a)=20 neither prohibited conduct nor created private federal rights. In = contrast with=20 the statute at issue in Touche Ross, =A7 531(e) clearly prohibits = cable=20 operators from exercising editorial control over public access = programming.

We disagree with the district court=3Ds assertion that Congress = purposefully=20 withheld a private federal remedy in favor of exclusive enforcement of = =A7 531(e)=20 by local authorities. In this regard, it is significant that Congress=20 specifically reserved regulatory power for local franchising authorities = in=20 other sections of the CCPA. For instance, 47 U.S.C. =A7 544(b) permits a = local=20 franchising authority to establish and enforce requirements for = facilities and=20 equipment necessary to establish or operate a cable system. Also, 47 = U.S.C. =A7=20 543(a) provides that local franchising authorities shall regulate the = rates for=20 the provision of cable service where cable systems are not subject to=20 competition. It is clear from these provisions that had Congress = intended to=20 extend the tradition of local franchising authority regulation of cable=20 operators to include enforcement of =A7 531(e), Congress knew how to do = so and=20 could have done so by making an explicit reservation. \l=20 +N_7_+

Although the congressional record contains no clear indication as to = whether=20 Congress intended to create an implied private cause of action under =A7 = 531(e),=20 we believe that the statute=3Ds subsequent legislative history points = toward a=20 finding that Congress so intended. When Congress modified =A7 531 in = 1992 and=20 1996, three district courts had held that =A7 531(e) provided a private = cause of=20 action. See Missouri Knights of the Ku Klux Klan v. Kansas = City,=20 Mo., 723 F. Supp. 1347, 1354 (W.D. Mo. 1989), \l=20 +N_8_+ Altmann v. Television Signal Corp., 849 F. = Supp. 1335,=20 1341 n.6 (N.D. Cal. 1994) (citing Missouri Knights, 723 F. Supp. = at=20 1354), and Glendora, 893 F. Supp. at 269. \l=20 +N_9_+

Congress, when amending =A7 531 in 1992 and 1996, neither referred to = the=20 courts=3D interpretation that =A7 531(e) contains an implied private = cause of action=20 nor amended the statute to specify that no such private right exists. = When a=20 statute is first enacted, we begin our inquiry into whether it provides = a=20 private remedy by asking +whether Congress intended to create a private = remedy=20 as a supplement to the express enforcement provisions of the statute.+=20 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 = U.S. 353,=20 378 (1982). However, when +Congress acts in a statutory context in which = an=20 implied private remedy has already been recognized by the courts, . . . = the=20 question is whether Congress intended to preserve the pre-existing = remedy.+=20 Id. at 378-79. When Congress amended =A7 531, we presume that it = was aware=20 that federal courts had found an implied private remedy in =A7 531(e), = and that=20 Congress chose to leave the remedy in place. See Cannon v. = University=20 of Chicago, 441 U.S. 677, 696-97 (1979) (+It is always appropriate = to assume=20 that our elected representatives, like other citizens, know the law. . . = .+). \l +N_10_+

C.

Third, implying a private remedy under =A7 531(e) is consistent with = Congress=3Ds=20 legislative scheme. In holding to the contrary, the district court cited = the=20 Denver plurality for the proposition that, whereas leased access = channels=20 were created by federal statute, public access channels began as = creations of=20 state and local governments and were historically regulated by locally=20 accountable authorities. McClellan I, 949 F. Supp. at 100-02 = (citing=20 Denver, 518 U.S. at 760-63, 766). The district court then = concluded that=20 the CCPA maintains the historical distinction between the editorial = control of=20 leased channels and that of public access channels. Id. at 101.=20 Specifically, the district court found that the presence of an explicit = private=20 remedy under 47 U.S.C. =A7 532(c), \l = +N_11_+=20 and the absence of a remedy under =A7 531(e), demonstrates that Congress = intended=20 to provide for the federal regulation of leased channels and for = continued local=20 control of public access channels. Id. at 102.

Although Denver did not address =A7 531(e), our analysis is = affected by=20 the Denver plurality=3Ds \l = +N_12_+=20 observation that cable operators have not traditionally exercised = editorial=20 control over public access channels. \l=20 +N_13_+ See Denver, 518 U.S. at 761. The = plurality=20 noted that locally accountable bodies \l=20 +N_14_+ (in contrast to cable operators) have traditionally = provided=20 supervision over public access channels and are +capable of addressing = the=20 problem, should it arise, of patently offensive programming.+ Id. = at 763.=20

The language in Denver reinforces the finding that, by = enacting =A7=20 531(e), Congress specifically intended to withhold from cable operators = the=20 authority to exercise editorial control consistent with the history of = public=20 access channels. Contrary to the holding in McClellan I, the fact = that=20 locally accountable bodies have traditionally prevented patently = offensive=20 programming does not lead to a conclusion that Congress vested those = bodies with=20 exclusive authority to enforce =A7 531(e), which prohibits a cable = operator from=20 exercising editorial control over programs that do not contain = obscenity,=20 indecency, or nudity.

Congress=3Ds purpose in enacting the CCPA was to +establish[] a = national policy=20 that clarifies the current system of local, state, and Federal = regulation of=20 cable television.+ H.R. Rep. No. 98-934, at 19, 1984 U.S.C.C.A.N. at = 4656.=20 Consistent with Denver, the CCPA permits a locally accountable = body,=20 typically the local franchising authority, to control the operation of = public=20 access channels. See 47 U.S.C. =A7 531(c) (+A franchising = authority may=20 enforce any requirement in any franchise regarding the providing or use = of=20 [public access] channel capacity.+). However, a local franchising = authority may=20 avoid liability in its exercise of editorial control of public access = channel=20 content only to the extent that it exercises such control within First = Amendment=20 boundaries. Cf., e.g., Denver, 518 U.S. at 743-44 = (citations=20 omitted) (referring to the constitutional permissibility of regulating = radio=20 broadcasts of patently offensive, sex-related material easily accessed = by=20 children, and noting that the same compelling interest may be invoked = with=20 respect to cable channel broadcasts).

Neither Denver nor the language of the CCPA indicates that = Congress=20 intended to permit cable operators to exercise broad editorial control = over=20 public access channels. \l +N_15_+ = Instead,=20 the CCPA establishes the authority of local governments to regulate = cable=20 television through the franchise process. Although the CCPA permits = locally=20 accountable authorities to enforce the franchise agreements and control = the=20 operation of public access channels, the CCPA also +contains provisions = to=20 assure that cable systems provide the widest possible diversity of = information=20 services and sources to the public, consistent with the First = Amendment=3Ds goal=20 of a robust marketplace of ideas.+ H.R. Rep. No. 98-934, at 19, 1984=20 U.S.C.C.A.N. at 4656. In addition, if a municipality, through its local=20 franchise authority, improperly restricts a citizen from broadcasting on = a=20 public access channel, the citizen may seek redress of such a violation = in=20 federal court under 42 U.S.C. =A7 1983. \l=20 +N_16_+ See Coplin v. Fairfield Pub. Access = Television,=20 111 F.3d 1395, 1398 (8th Cir. 1997) (permitting a =A7 1983 claim for = violations of=20 the First Amendment and the CCPA against a city council and a local = cable=20 regulatory board created by the council by a private party prevented = from=20 broadcasting programs on a public access channel). Considering the goals = of the=20 CCPA and the history of public access channels, it would be anomalous to = provide=20 a private federal remedy to a party prevented from broadcasting on a = public=20 access channel by a local franchise authority while refusing to provide = a=20 similar remedy to a party denied access by a cable operator.

It is our view that the federal courts are the appropriate final = arbiters of=20 whether the content of a public access program is properly excluded from = broadcast on a public access channel. Finding an implied private cause = of action=20 under 531(e) ensures the right of a private citizen to challenge the = exercise of=20 editorial control over public access programming by either a locally = accountable=20 authority under 42 U.S.C. =A7 1983, or, as in this case, by a cable = operator under=20 =A7 531(e). \l +N_17_+ We conclude = that this=20 result is the most consistent with a legislative scheme intended to = provide +an=20 environment of many tongues speaking many voices.+ H.R. Rep. 98-934 at = 19, 1984=20 U.S.C.C.A.N. at 4656 (internal quotation marks omitted).

D.

Fourth, appellants=3D cause of action is not one traditionally left = to state=20 control in an area that is basically the concern of the states. \l +N_18_+ The district court determined = that the=20 fourth factor +weighs in favor of not finding a private cause of action, = as=20 editorial control of public access programming has historically been = vested in=20 locally accountable bodies.+ McClellan I, 949 F. Supp. at 102. We = disagree. We do not believe that the analysis under the fourth factor = requires=20 us to consider whether cable television or, more specifically, public = access=20 channels have traditionally been subject to local control. Even if we = agreed=20 that the historical background of the channels controlled the outcome of = the=20 inquiry, we do not believe that the present state of public access is an = area=20 basically the concern of the States.

We view the proper analysis to be whether the goal of =A7 531(e), to = permit the=20 free flow of information through an important public forum, is one = traditionally=20 left to the states. We do not believe that it is. Free speech is such an = intrinsic, fundamental value in our federal system that the right to = free=20 expression is codified in the first entry of the Bill of Rights. = See U.S.=20 Const. amend. I. The interest sought to be protected by =A7 531(e) +is = akin to, if=20 indeed it is not the same as, the interest protected by the First = Amendment.+=20 H.R. Rep,. 98-934, at 31, 1984 U.S.C.C.A.N. at 4668 (internal quotation = marks=20 and citation omitted). Because the development and regulation of public = access=20 channels and the protection of free speech rights are not matters solely = of=20 concern to state or local government, we conclude that the fourth = Cort=20 factor also favors a finding of an implied private cause of action under = =A7=20 531(e).

IV.

For the foregoing reasons, we hold that all four Cort factors = dictate=20 that we find an implied private cause of action under =A7 531(e). = Accordingly, we=20 reverse the district court=3Ds decision and remand for proceedings = consistent with=20 this opinion.

1. ^*The Honorable Gerald W. Heaney, Circuit Judge for the = United=20 States Court of Appeals for the Eighth Circuit, sitting by designation. =

2. ¹Appellees note that =3DCablevision of Connecticut, = Inc.=3D is a=20 nonexistent entity. They do not dispute, however, that Cablevision of=20 Connecticut, L.P. and Cablevision of Southern Connecticut, L.P. are = proper=20 parties to the action.

3. ²As was proper on a motion to dismiss on the pleadings, = where=20 plaintiff=3Ds allegations are to be taken as true, the district court = merely=20 recited the factual allegations of McClellan=3Ds complaint. See=20 McClellan v. Cablevision of Conn., Inc., 949 F. Supp. 97, 98 (D. = Conn.=20 1997). To the extent that we supplement the factual recitation here with = other=20 allegations also drawn from the pleadings, we do so only to flesh out = the=20 background of the action; that factual context, however, has no bearing = on the=20 questions of law on which this appeal turns.

4. ³Cablevision claimed that McClellan deliberately = violated its=20 rules governing the submission of programming for broadcast on its = public access=20 channels by preventing Cablevision from reviewing a tape of the August = 19th show=20 prior to its broadcast, by causing Cablevision to broadcast the show by=20 subterfuge, and by refusing to permit Cablevision to review the tape of = his=20 program after it aired.

5. ⁴Specifically, McClellan alleges that Cablevision has=20 impermissibly exercised editorial control over a public, educational, or = governmental (+public access+) cable channel under 47 U.S.C. =A7 531(e), = which=20 provides:

Subject to section 544(d) of this title, a cable operator shall not = exercise=20 any editorial control over any public, educational, or governmental use = of=20 channel capacity provided pursuant to this section, except a cable = operator may=20 refuse to transmit any public access program or portion of a public = access=20 program which contains obscenity, indecency, or nudity.

Id.

6. ⁵Neither party specifically briefed or argued the = separate=20 question of whether viewer-plaintiffs Cooper and Bayonne raised a = federal claim=20 on their own behalf that is cognizable under =A7 531(e). For this = reason, we leave=20 it to the district court on remand to consider any such issues in the = first=20 instance.

7. ⁶Cablevision argues that in =A7 531(c) Congress = specified the=20 enforcement mechanism by which it intended to enforce =A7 531(e)=3Ds = prohibition of=20 editorial control over public access channels. Section 531(c) provides = that +[a]=20 franchising authority may enforce any requirement in any franchise = regarding the=20 providing or use of [public access] channel capacity.+ 47 U.S.C. =A7 = 531(c). We=20 find this section inapposite in that the prohibition of editorial = control=20 mandated by =A7 531(e) is a statutory requirement, not a franchise = requirement.=20

8. ⁷The district court in the present case distinguished=20 Missouri Knights by pointing out that there the question of = whether an=20 implied cause of action exists under =A7 531(e) arose in the context of = a 42=20 U.S.C. =A7 1983 claim. See McClellan I, 949 F. Supp. at 99 = n.1. We=20 believe the distinction is irrelevant for the purpose of establishing = the legal=20 context in which Congress reviewed =A7 531(e) when amending the statute. = After=20 applying the Cort factors, the court in Missouri Knights = made its=20 holding abundantly clear that =A7 531(e) provides an implied private = cause of=20 action. See Missouri Knights, 723 F. Supp. at 1354 (+[T]he = Court=20 believes the plaintiffs have an implied right of action under Section = 611 of the=20 Cable Act [codified at 47 U.S.C. =A7 531].+).

9.

8We note that the Glendora court subsequently vacated its = holding that=20 =A7 531(e) provides an implied private cause of action. Instead, the=20 Glendora court incorporated the reasoning in McClellan I, = as a=20 substitute for its earlier analysis, to hold that no such implied cause = of=20 action exists. See Glendora v. Cablevision Sys. Corp., No. = 93 Civ.=20 8344, slip op. (S.D.N.Y. March 25, 1998). However, our analysis of the=20 legislative history of =A7 531(e) is unaffected as the court=3Ds = reversal came well=20 after Congress made its 1996 amendments to the CCA.

10. ⁹We acknowledge that the legal context in which = Congress=20 enacted the statute considered in Cannon was more pervasive than = that in=20 which Congress amended =A7 531(e). See Cannon, 441 U.S. at = 696. In=20 Cannon, a federal court of appeals and over a dozen federal = district=20 courts had consistently interpreted the critical language at issue to = provide an=20 implied private remedy. In this case, only three federal district courts = had=20 held that =A7 531(e) provides an implied private cause of action by the = time=20 Congress made its 1996 amendments to the CCPA, although no court had = made a=20 determination to the contrary. We point out, however, that the events=20 surrounding the Missouri Knights case were the subject of = widespread=20 attention from the national media, increasing the likelihood that = Congress was=20 aware of the prevailing legal context of the statute. See, = e.g.,=20 Kansas City Restores Cable Outlet to Which the Klan Sought = Access, N.Y.=20 Times, July 16, 1989, =A7 1, at 20; David A. Kaplan, Is the Klan = Entitled to=20 Public Access?, N.Y. Times, July 31, 1988, =A7 2, at 25; White = Supremacists=20 Find a TV Platform Via Public Access, Wall St. J., July 12, 1988, at = 38;=20 The Ku Klux Klan and `Klansas City Kable,=3D Newsweek, July 4, = 1988, at 21.=20

11. ¹⁰Section 532(c)(2) provides that:

A cable operator shall not exercise any editorial control over any = video=20 programming provided pursuant to this section, or in any other way = consider the=20 content of such programming, except that a cable operator may refuse to = transmit=20 any leased access program or portion of a leased access program which = contains=20 obscenity, indecency, or nudity . . . .

47 U.S.C. =A7 532(c)(2). The CCA provides an explicit private cause = of action=20 for violations of the =A7 532(c)(2) proscription in =A7 532(d):

Any person aggrieved by the failure or refusal of a cable operator to = make=20 channel capacity available for use pursuant to this section may bring an = action=20 in the district court of the United States for the judicial district in = which=20 the cable system is located to compel that such capacity be made = available.

47 U.S.C. =A7 532(d).

12. ¹¹Despite the fact that three justices joined in Part = IV of=20 Justice Breyer=3Ds opinion in Denver, which provides the = discussion=20 relevant to this case, we believe that the propositions for which we = cite=20 Denver are supported by a majority of the Supreme Court. = See=20 Denver, 518 U.S. at 792-94 (Kennedy, J., with whom Ginsburg, J., = joins,=20 concurring in part, concurring in judgment in part, and dissenting in = part).=20

13. ¹²Therefore, the Denver plurality continued, = the cable=20 operators=3D +countervailing First Amendment interest is nonexistent, or = at least=20 much diminished.+ Id. at 761 (citation omitted). In other words, = where a=20 newspaper publisher has a First Amendment right to control the editorial = content=20 of the newspaper, a cable operator has no analogous interest in a public = access=20 channel=3Ds broadcasts, where information should flow freely.

14. ¹³Prior to the CCPA, nearly all regulation of cable = television=20 occurred through the franchise process conducted at the local government = level.=20 See H.R. Rep. No. 98-934, at 19, reprinted in 1984 = U.S.C.C.A.N.=20 4655, 4656. In describing local control of public access channels, the=20 Denver Court referred to the +access channel manager+ that local=20 governments might require in their franchise agreement with a cable = operator.=20 Denver, 518 U.S. at 761.

15. ¹⁴The district court did not address whether = McClellan=3Ds=20 August 21, 1996 program contained material that Cablevision could = properly=20 reject within statutory and constitutional boundaries, see =A7 = 531(e) and=20 Denver, 518 U.S. at 766, and it would be inappropriate for us to = address=20 the issue on appeal. Even if the court were to find the material in = McClellan=3Ds=20 August 21, 1996 program to be properly excluded, =A7 531(e) provides no = support=20 for Cablevision=3Ds refusal to broadcast all of McClellan=3Ds = future=20 programming--the strongest and broadest possible form of editorial=20 control--because such action clearly falls outside of the statute=3Ds = exception.=20

16. ¹⁵Section 555a(a) limits the remedies available for = such=20 claims. That section provides:

In any court proceeding pending on or initiated after October 5, = 1992,=20 involving any claim against a franchising authority or other = governmental=20 entity, or any official, member, employee, or agent of such authority or = entity,=20 arising from the regulation of cable service . . ., any relief, to the = extent=20 such relief is required by any other provision of Federal, State, or = local law,=20 shall be limited to injunctive relief and declaratory relief.

47 U.S.C. =A7 555a(a).

17. ¹⁶Because Appellants did not bring a claim against = Cablevision=20 under =A7 1983, we do not address whether such a claim would be = appropriate.

18. ¹⁷Cablevision concedes that the implication of a = private=20 remedy under =A7 531(e) is somewhat consistent with Congress=3Ds desire = to establish=20 a national policy concerning cable communications. Cablevision argues, = however,=20 that the implication is questionable because the exercise of editorial = control=20 over obscenity requires an analysis of local community standards--an = analysis=20 that, Cablevision implies, is ideally performed by local entities such = as=20 franchising authorities. It is true that +obscene material is not = protected by=20 the First Amendment; . . . that [it] can be regulated by the States . . = . ; and=20 . . . that obscenity is to be determined by applying `contemporary = community=20 standards.=3D+ Miller v. California, 413 U.S. 15, 36-37 (1973) = (citations=20 omitted). Although community standards vary from state to state, = see=20 id. at 32-33, the courts, rather than a cable operator or local=20 franchising authority, are entrusted with defining and applying local = standards.=20 See Ballew v. Georgia, 435 U.S. 223, 241 n.33 (1978) = (citation=20 omitted); Miller, 413 U.S. at 33-34. Cf. Smith v. = United=20 States, 431 U.S. 291, 303-04 (1977) (stating that the question of = what=20 constitutes a community=3Ds standard regarding obscenity presents issues = of=20 federal law +upon which a state statute . . . cannot have conclusive = effect+).=20

POLITICAL PROGRAMMING ISSUES ON PEG CHANNELS

There are several requirements for broadcast licensees and cable = operators=20 under the Communications Act and FCC rules related to political = broadcasting=20 that are aimed at ensuring fair and reasonable access by political = candidates.=20 However, for various statutory and policy reasons, none of the = requirements is=20 applicable directly to PEG channels. However, to address possible First=20 Amendment concerns and to avoid potential litigation, managers of PEG = access=20 channels should consider developing and implementing policies consistent = with=20 the principles of federal policies.

Federal regulations governing political broadcasting include: (1) the = fairness doctrine (which requires a reasonable opportunity for = the=20 discussion of conflicting views); (2) the personal attack rule = (which=20 allows a person whose character is attacked to receive notice and a = reasonable=20 opportunity to respond) and the editorial rule (which affords = political=20 candidates notice and an opportunity to respond to editorials opposing = them or=20 endorsing other candidates); (3) the reasonable access = requirement (which=20 authorizes the FCC to revoke a license for willful or repeated failure = to allow=20 reasonable access by a political candidate for a federal = position); \l +fn17+ and (4) the equal = opportunity=20 requirement (which requires a licensee to make the broadcasting station=20 available to all candidates for the same office on an equal = basis).

Political Broadcast Rules

The Fairness Doctrine

The fairness doctrine states: \l = +fn18+

A cable television system operator engaging in origination = cablecasting shall=20 afford reasonable opportunity for the discussion of conflicting views on = issues=20 of public importance.

In 1987 the FCC announced that the fairness = doctrine=20 no longer served the public interest and would no longer be = enforced.=20 Syracuse Peace Council v. WTVH (TV), 2 F.C.C. Rcd. 50434 (1987),=20 aff=3Dd, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 = U.S. 1019=20 (1990). The Commission was concerned that the fairness doctrine operated = to=20 chill broadcaster speech on controversial issues, in particular = unorthodox or=20 +fringe+ views. Additionally, the Commission determined that increases = in the=20 number of broadcast outlets had undercut the need for the doctrine. = Report=20 Concerning General Fairness Doctrine Obligations of Broadcast = Licensees, 102=20 F.C.C.2d 143, 188-205 (1985).

The Personal Attack Rule and the Political Editorial Rule

The personal attack rule and political editorial rule provide = that: \l +fn19+

(b) When, during such origination cablecasting, an attack is made = upon the=20 honesty, character, integrity, or like personal qualities of an = identified=20 person or group, the cable television system operator shall, = within a=20 reasonable time and in no event later than one (1) week after the = attack,=20 transmit to the person or group attacked:

(1) Notification of the date, time, and identification of the = cablecast;

(2) A script or tape (or an accurate summary if a script or tape is = not=20 available) of the attack; and

(3) An offer of a reasonable opportunity to respond over the = system=3Ds=20 facilities.

(c) The provisions of paragraph (b) of this section shall not apply = to=20 cablecast material which falls within one or more of the following = categories:=20

(1) Personal attacks on foreign groups or foreign public figures; =

(2) Personal attacks occurring during uses by legally qualified = candidates.=20

(3) Personal attacks made during cablecasts not included in paragraph = (b)(2)=20 of this section and made by legally qualified candidates, their = authorized=20 spokespersons or those associated with them in the campaign, on other = such=20 candidates, their authorized spokespersons or persons associated with = the=20 candidates in the campaign; and

(4) Bona fide newscasts, bona fide news interviews, and on-the-spot = coverage=20 of bona fide news events (including commentary or analysis contained in = the=20 foregoing programs, but, the provisions of paragraph (b) of this section = shall=20 be applicable to editorials of the cable television system operator). =

The presumed reason reporters are = exempt is that=20 everything they write could be accused of a personal attack by somebody. = As a=20 practical matter the cable operator SHOULD not have to notify everybody = in the=20 news. I guess the other thing is that news subjects generally know when = they are=20 in the news; if the reporter doesn=3Dt tell them, friends do. But just = because the=20 FCC exempts the cable company from notifying news victims, doesn=3Dt = mean the FCC=20 doesn=3Dt care if news victims have a chance to respond!

(d) Where a cable television system operator, in an editorial, (1) = endorses=20 or (2) opposes a legally qualified candidate or candidates, the system = operator=20 shall, within 24 hours of the editorial, transmit to respectively (i) = the other=20 qualified candidate or candidates for the same office, or (ii) the = candidate=20 opposed in the editorial, (a) notification of the date, time, and = channel of the=20 editorial; (b) a script or tape of the editorial; and (c) an offer of a=20 reasonable opportunity for a candidate or a spokesman of the candidate = to=20 respond over the system=3Ds facilities: Provided, however, That = where such=20 editorials are cablecast within 72 hours prior to the day of the = election, the=20 system operator shall comply with the provisions of this paragraph = sufficiently=20 far in advance of the broadcast to have a reasonable opportunity to = prepare a=20 response and to present it in a timely fashion.

As corollaries to the fairness doctrine, the legitimacy of the = personal=20 attack rule and the editorial rule have become suspect. In 1983, the FCC = issued=20 a Notice of Proposed Rulemaking proposing to repeal or modify the = editorial and=20 personal attack rules. Repeal or Modification of the Personal Attack = and=20 Political Editorial Rules, 48 Fed. Reg. 28,295 (1983). Although the fairness doctrine disappeared in = 1987, no=20 action was taken on the NPRM until the Radio-Television News Directors=20 Association filed a petition for a writ of mandamus in federal court. In = response to the petition, the FCC refocused its attention on the NPRM = and=20 concluded in August of 1997 that +[a]fter extensive discussion and = consideration=20 of various alternatives, a majority of the Commission is unable at this = time to=20 agree upon any resolution to the issues presented in this docket.+ = Commission=20 Proceeding Regarding the Personal Attack and Political Editorial = Rules, 12=20 F.C.C. Rcd. 11,956, 11,956 (1997). The position was expressed again when = newly=20 appointed Commissioners reexamined the issue. See Commission=20 Proceeding Regarding the Personal Attack and Political Editorial = Rules, 13=20 F.C.C. Rcd. 11,809 (1998). The matter is again before the FCC, having = been=20 directed by a federal court to provide a justification for retaining the = personal attack and political editorial rules. = Radio-Television News=20 Directors Association v. F.C.C., 184 F.3d 872 (D.C. Cir. 1999). = Despite the=20 legal uncertainty of these regulations, they remain FCC=20 requirements. \l +fn20+ = See FCC,=20 Cable Television Fact Sheet Program Content Regulations,=20 <www.fcc.gov/csb/facts/program.html> (Sept. 1997); FCC, Cable=20 Television Information Bulletin, = <www.fcc.gov/csb/facts/csgen.html>=20 (Aug. 1997); 47 C.F.R. =A7=A773.1920, 73.1930, 76.209(b)-(c) (1998). =

The Reasonable Access Requirement

The reasonable access requirement provides that the FCC may revoke a=20 broadcast station=3Ds license or construction permit +for willful or = repeated=20 failure to allow reasonable access to or to permit purchase of = reasonable=20 amounts of time for the use of a broadcasting station by a legally = qualified=20 candidate for Federal elective office on behalf of his = candidacy.+ \l +fn21+ Although the reasonable access=20 requirement is applied and enforced actively against broadcasters by the = FCC,=20 the FCC has concluded that Congress had not intended the reasonable = access=20 requirement to apply to cable television systems. In the Matter = of=20 Codification of the Commission=3Ds Political Programming Policies, 7 = F.C.C.=20 Rcd. 678, 681 (1992). +In our view ... the statutory language ... and = its=20 legislative history indicate that Congress never intended to apply = reasonable=20 access to cable television.+ Id.

The Equal Opportunity Requirement

The equal opportunity requirement provides: = \l=20 +fn22+

(a) General requirements. No cable television system is = required to=20 permit the use of its facilities by any legally qualified candidate for = public=20 office, but if any system shall permit any such candidate to use its=20 facilities, it shall afford equal opportunities to all other candidates = for that=20 office to use such facilities. Such system shall have no power of = censorship=20 over the material broadcast by any such candidate. Appearance by a = legally=20 qualified candidate on any:

(1) Bona fide newscast;

(2) Bona fide news interview;

(3) Bona fide news documentary (if the appearance of the candidate is = incidental to the presentation of the subject or subjects covered by the = news=20 documentary); or

(4) On-the-spot coverage of bona fide news events (including but not = limited=20 to political conventions and activities incidental thereto) shall not be = deemed=20 to be use of a system. (section 315(a) of the Communications = Act.)

The FCC regards my proposed interview of Tom Coates, a +bona fide = news=20 interview+, about the gambling referendum is not even a +use of a = system+, but=20 Deborah Blume calls it a +political advertisement+. But of course the = +fairness=20 doctrine+ is moot anyway, because the gambling proponents can ALREADY = get their=20 own cable TV show if they like.

* * *

(c) Timing of request. A request for equal opportunities must = be=20 submitted to the system within 1 week of the day on which the first = prior use=20 giving rise to the right of equal opportunities occurred: Provided, = however,=20 That where the person was not a candidate at the time of such first = prior use,=20 he or she shall submit his or her request within 1 week of the first = subsequent=20 use after he or she has become a legally qualified candidate for the = office in=20 question.

(d) Burden of proof. A candidate requesting equal = opportunities of the=20 system or complaining of noncompliance to the Commission shall have the = burden=20 of proving that he or she and his or her opponent are legally qualified=20 candidates for the same public office.

(e) Discrimination between candidates. In making time = available to=20 candidates for public office, no system shall make any discrimination = between=20 candidates in practices, regulations, facilities, or services for or in=20 connection with the service rendered pursuant to this part, or make or = give any=20 preference to any candidate for public office or subject any such = candidate to=20 any prejudice or disadvantage; nor shall any system make any contract or = other=20 agreement which shall have the effect of permitting any legally = qualified=20 candidate for any public office to cablecast to the exclusion of other = legally=20 qualified candidates for the same public office.

In short, a cable operator that permits any political candidate to = use its=20 facilities must provide all legally qualified candidates for the same = office the=20 same opportunities to use its facilities. The = FCC ruled=20 in 1980 that the equal opportunity requirement did not apply to = political=20 programming on access channels +as long as the channels on which = such=20 programming is presented themselves have inherent in their functioning, = access=20 of a type which makes possible equal opportunities for political = candidates and=20 time for the provision of programming covering all sides of = controversial issues=20 of public importance.+ Cable TV Access Channel Rules, = 83=20 F.C.C.2d 147, 148 (1980). The special treatment accorded public = access=20 channels because of their +inherent+ availability to diverse viewpoints = does not=20 necessarily apply to governmental or educational access channels, which = normally=20 do not provide a venue for all groups or viewpoints. Subsequently, = however,=20 a 1986 FCC Staff Ruling (exempting an education access channel from the = equal=20 opportunities requirement) found that the equal opportunities = requirement=20 applies only to those channels owned or controlled by the cable = operator. In=20 re Zawicki, 60 R.R.2d 1657 (1986). \l=20 +fn23+ Presumably such ruling would also apply to government = access=20 channels, as well.

Considerations for Public Access

Given that the traditional political broadcast rules do not apply to = public=20 access channels, how should those managing those channels provide for = their use=20 by political candidates? A number of different approaches have been = tried by=20 access centers. Some have limited political candidates to appearing on = news or=20 debate formats. Some have limited political debates to particular times=20 allocated for this purpose. And others have prohibited the appearance of = political candidates altogether.

The safest approach for public access is to treat political = programming no=20 differently from any other programming on the public access channel. = This would=20 comply with the reasoning in Cable TV Access Channel Rules, 83 = F.C.C.2d=20 147 (1980), that the inherent opportunity for access justifies not = imposing the=20 equal opportunity requirement. Moreover, efforts to=20 single out political programming for particular formats and times, no = matter how=20 well intentioned, are fraught with the risk of being found by a court to = constitute content-based regulation, rather than time, place and manner=20 regulation, because they would apply to only political programming = rather than=20 to all programming. The U.S. Supreme Court has held that a content-based = restriction on political speech in a public forum requires the showing = of a=20 compelling state interest. See, e.g., McIntyre v. Ohio Elections = Comm.,=20 514 U.S. 344, 347 (1995) (a restriction on campaign literature can be = upheld=20 only if it is narrowly tailored to serve an overriding state interest).=20 Generally, very few restrictions on political speech are likely to = survive the=20 test. But see, Burson v. Freeman, 504 U.S. 191, = 198=20 & 208 (1992) (a state law requiring a +campaign-free zone+ within = 100 feet=20 from the entrances of a polling place passes constitutional muster, even = though=20 it is a +content-based restriction on political speech in a public forum = ...=20 subject to exacting scrutiny+).

Additionally, managers of access channels need to be aware that = access=20 provided to a political candidate could be +political activity+ which = could=20 cause loss of tax exempt status of a 501(c)(3) nonprofit corporation or = could=20 represent a campaign contribution subject to federal and state campaign=20 contribution laws.

Types of Restrictions

The following is a brief discussion of different types of = restrictions which=20 have been adopted by public access centers and the potential problems = which may=20 arise under these approaches. Those marked with an asterisk (*) are = least likely=20 to raise constitutional problems.

Candidates=3D Forums. Confining political campaign programming to = candidates=3D forums at which all candidates are permitted to appear may = be=20 considered an impermissible content-based restriction because it = prevents those=20 wishing to convey their message in a different format from using such = other=20 method. Such a limitation would not be restrictive, however, if = candidates are=20 also given the option of appearing at other times.

Limiting Time Period. A limitation that regulates campaign = broadcasting=20 to a particular block of time (e.g., from 8 p.m. =96 10 p.m.) is=20 content-based because it applies to only political programming. Even = though all=20 candidates are treated equally, they are nevertheless being singled out = because=20 of the content of their speech. Again, a less restrictive option would = be to=20 encourage candidates to air their programming during the time period, = but=20 provide them the option to appear at other times as well.

Restricting Campaign Programming During the Period Before = Election. A=20 number of channels have prohibited campaign programming during the week = before=20 an election (or some other time period). In Moss v. Cablevision = Systems,=20 22 F. Supp. 2d 1 (E.D. N.Y. 1998), the Marijuana Reform Party = challenged,=20 inter alia, the cable operator=3Ds policy precluding any = qualified=20 candidate for public office from broadcasting on the public access = channel=20 during the sixty-day period prior to the election. The court held that, = as a=20 cable operator, Cablevision could not deny a qualified political = candidate from=20 appearing on the public access channel, because 47 U.S.C. =A7531(e) = forbids cable=20 operators from exercising editorial control over access channels (except = for=20 programming containing obscenity). \l = +fn24+=20 Although the case does not address the situation where a manager of a = public=20 access channel which is not a cable operator limits the presentation of=20 political programming, such approach would be suspect because it would = apply to=20 political speech and would be content-based.

Excluding Political Advertising. A good argument can be made that = it is=20 appropriate to exclude commercial advertising from public access = channels=20 because access users should not be able to profit from the use of free=20 facilities. \l +fn25+ Under the = Communications=20 Act, for example, public broadcast stations are prohibited from making=20 facilities available to any person for the purposes of advertisement. 47 = U.S.C.=20 =A7399B. An +advertisement+ is defined as +any = message or=20 other programming material which is broadcast or otherwise transmitted = in=20 exchange for any remuneration and which is intended . . . to = promote=20 any service, facility, or product offered by any person who is engaged = in such=20 offering for profit.+ 47 U.S.C. =A7 399B(a)(1). Political advertising, = on the=20 other hand, may present a more complicated issue since it is intended = for=20 purposes of campaigning and therefore, can also be considered political = speech.=20 See e.g., New York Times Co. v. Sullivan, 376 U.S. 254, = 266 (1964)=20 (holding that an advertisement in the New York Times was not a = commercial=20 advertisement for First Amendment purposes because +it communicated = information,=20 expressed opinions, recited grievances, protested claimed abuses, and = sought=20 financial support on behalf of a movement whose existence and objectives = are=20 matters of highest public interest and concern+); Moss v. Cablevision = Systems, 22 F.Supp. at 6 (rejecting the argument that the Marijuana = Reform=20 Party programming was commercial speech because the candidates were not = selling=20 a product or service). Moreover, because there is a +profound national=20 commitment to the principles that debate on public issues should be = uninhibited,=20 robust, and wide-open[,]+ courts are likely to err on the side of = caution and=20 protect speech that is arguably political. New York Times v. = Sullivan,=20 376 U.S. at 270.

Excluding Solicitation of Contributions. An issue that was raised = during=20 the Jerry Brown presidential primary campaign in 1991 and 1992 is = whether the=20 common prohibition against commercial programming on PEG access channels = can=20 apply to programming in which political campaign contributions are = solicited. In=20 such a case, the arguments against such restrictions are far greater = than the=20 case in favor of them because campaign solicitations are generally = considered=20 part and parcel of the campaign. This was especially true in the = case of the=20 Jerry Brown campaign where the use of an 800 number to raise funds was = part of=20 his political +speech+ against politics as usual.

*Limitation to Local Candidates. Many access center rules limit = the use=20 of the stations to local residents. If such is the case, limiting use of = the=20 access channel to local candidates would be most likely a permissible=20 restriction since all persons using public access would be treated the = same=20 way.

*Limiting Time for All Users. If there is a concern that = political=20 candidates may monopolize the public access channel, a reasonable course = of=20 action would be to restrict the amount of time that could be used by any = programmer. If a time restriction is reasonable (e.g. 30 minutes = a week)=20 and is applied to all users, not just political candidates, such=20 restriction would likely be upheld as a neutral time, place, and manner=20 restriction.

Access for a Political Candidate as +Political Activity+ or a = Campaign=20 Contributions

Another concern of access providers is whether the provision of = access=20 constitutes political activity which either (1) may cause a non-profit = access=20 corporation to lose its 501(c)(3) tax exempt status or (2) count against = the=20 permissible contributions by an individual or organization. In the = context of=20 public access channels, these concerns are not frivolous, even though = they=20 should be bogus. Internal Revenue Service Publication 557, Tax-exempt = Status=20 for Your Organization, states (at 13):

Political activity. If any of the activities (whether or not = substantial)=20 of your organization consist of participating in, or intervening in, any = political campaign on behalf of (or in opposition to) any candidate for = public=20 office, your organization will not qualify for tax-exempt status under = section=20 501(c)(3). Such participation or intervention includes the publishing or = distributing of statements.

Whether your organization is participating or intervening, directly = or=20 indirectly, in any political campaign on behalf of (or in opposition to) = any=20 candidate for public office depends upon all of the facts and = circumstances of=20 each case. Certain voter education activities or public forums conducted = in a=20 nonpartisan manner may not be prohibited political activity under = section=20 501(c)(3), while other so-called voter education activities may be = prohibited.=20

Merely making channel capacity, studios or equipment available to = anyone,=20 including political candidates, should not constitute political = activity.=20 Similarly, providing staff or volunteer assistance in producing = programming=20 should not constitute political activity, if such assistance is = available to=20 all. However, if political candidates are accorded different treatment = than=20 others, there is some risk that the IRS would consider such treatment to = constitute political activity for purposes of section = 501(c)(3).

This is not an issue for me since Mediacom is not a nonprofit, but = even if it=20 were, and even if it favored political candidates over other access = producers,=20 the IRS should not call the assistance +partisan+ unless it assisted one = party=20 over another.

A related issue is whether the availability of channel capacity, = production=20 equipment and personnel to a candidate constitutes a campaign = contribution under=20 applicable federal law. See 2 U.S.C. 431(8). Although = providing cable=20 access is unlikely to be considered a contribution, a court could=20 conceivably regard a public access center=3Ds provision of equipment = and=20 production personnel, as contributions. As a result, managers of = access=20 channels should be aware of federal (and possibly state) campaign = contribution=20 limits and the penalties associated with their violation. See 47 = U.S.C.=20 =A7=A7 337g(d) and 441a.

The Federal Election Commission (+FEC+) is facing a similar issue in=20 connection with hyperlinks to a candidate=3Ds Internet web site. In = 1998, the FEC=20 assessed a civil penalty against a House candidate who linked his = campaign=3Ds web=20 site to a site run by his company. But, this year the FEC allowed the = Minnesota=20 Secretary of State=3Ds office to establish hyperlinks to the web sites = of state=20 candidates. The FEC is now examining its position in response to = questions=20 raised by the Bush Campaign. As with the 501(c)(3) issue, it is safest = to treat=20 political candidates no different from others.

State Law Restrictions

In addition to federal constitutional limitations on regulations = which may be=20 imposed on political speech, there also may be state laws which affect = the=20 candidates=3D access. Mississippi, for example, requires radio and = television=20 stations that criticize or support political candidates to comply with = FCC=20 regulations. See Miss. Code Ann. =A7 23-15-897 (1998). Montana = makes it=20 unlawful to place an advertisement supporting or opposing a = candidate for=20 use on election day. See Mont. Code Anno., =A7 13-35-233(1) = (1998). The=20 West Virginia Supreme Court has interpreted the West Virginia = constitution to=20 include a +fairness doctrine+ that applies when a state agency or=20 instrumentality sells advertising for broadcast. UMW v. Parsons, = 172 W.=20 Va. 386, 398 (1983). Other states also limit the kinds of corporate=20 contributions which can be made to candidates. In adopting rules and = procedures, access centers should check state laws that may be=20 applicable.

Concerns for Education and government Access

Because the First Amendment applies to protection of an = individual=3Ds speech=20 from the government, most of the constitutional considerations which = affect=20 public access channels do not apply to government and education = channels. If an=20 access channel is carrying only government programs and is not open to = public=20 use, the government should be able to edit its own speech without = implicating=20 the First Amendment. But see, UMW v. Parsons, 172 W. Va. = 386, 398=20 (1983) (West Virginia constitution includes +fairness doctrine+ = applicable where=20 there is state action).

Even though the same constitutional concerns may not apply, however, = a=20 government should be concerned that it does not exclude or appear to be=20 excluding, non-government viewpoints or programming. Although the FCC = political=20 broadcasting rules do not apply to governmental access channels, \l +fn26+ there are sound reasons for a city = to adopt=20 similar rules in order to avoid a legal, as well as political, challenge = that=20 government is favoring its own speech if others do not have equivalent = access to=20 the channel. One response might be to point to the ability of others to = program=20 on a public access channel (if one exists in the community) as a way to = obtain=20 fairness or equal opportunities. Various issues may be presented, = however, such=20 as whether the public access channel is watched by as many viewers, = whether the=20 time available to present programming is as desirable, and whether the = format of=20 programming on the government channel would favor certain candidates. As = to the=20 latter, for example, if a candidates forum were held on the government = channel=20 to which only some bona fide candidates were invited, it could be shown = by an=20 excluded candidate that the opportunity to appear in a different format = on=20 public access is a less favorable forum. An advantage of rules or = practices=20 patterned on the FCC=3Ds rules is that a city can claim that the rules = are fair=20 and impartial, because they represent an independent determination by a=20 disinterested outside agency.

OPINION OF THE NEBRASKA COURT OF APPEALS

(Designated for Permanent Publication)

Case Title

State of Nebraska, Appellee,

v.

Scott A. Harrold, Appellant.

Case Caption

State v. Harrold

Filed October 27, 1998. No. A-97-1167.

Appeal from the District Court for Lancaster County, = Paul D.=20 Merritt, Jr., Judge, on appeal thereto from the County Court for = Lancaster=20 County, John V. Hendry, Judge. Judgment of District Court reversed and=20 dismissed.
Dennis R. Keefe, Lancaster County Public Defender, and = Robert G.=20 Hays for appellant.
Don Stenberg, Attorney General, and Marilyn B.=20 Hutchinson for appellee.

STATE V. HARROLD
NO. A-97-1167 - filed October 27,1998.

1. Rules of Evidence. In all proceedings where the Nebraska = Evidence=20 Rules apply, admissibility of evidence is controlled by the Nebraska = Evidence=20 Rules, not judicial discretion, except in those circumstances under the = Nebraska=20 Evidence Rules when judicial discretion is a factor involved in the=20 admissibility of evidence.

2. Criminal Law: Appeal and Error. In a criminal appeal from = county=20 court, appellate courts generally review for error on the record.

3. Obscenity: Proof. To regulate or prohibit publications, the = State=20 must prove all three parts of the test in Miller v. California, = 413 U.S.=20 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).

4. Constitutional Law: Obscenity. Obscene materials are not = within the=20 ambit of speech or press protected by the First Amendment to the federal = Constitution or Neb. Const. art. 1, =A7 5.

5. Obscenity. In determining whether a work appeals to the = prurient=20 interest under the first prong of the test in Miller v. California, = 413=20 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), it must be judged as a = whole,=20 and not on the basis of isolated portions.

6. _____. The context in which sexual material is presented must be=20 considered.

7. Constitutional Law: Obscenity. If a = work=3Ds=20 predominant appeal, considered in the context of the work=3Ds entirety, = is to=20 sexual interest that is not deviant, the work may be considered indecent = rather=20 than obscene and, thus, entitled to constitutional protection. =

8. Obscenity: Evidence: Expert Witnesses. A person charged = civilly or=20 criminally with violating the Nebraska obscenity statutes is entitled to = present=20 evidence in his or her defense and in support of his or her theory of = defense,=20 including, but not limited to, expert witnesses, proof of=20 financial interest or lack thereof in the allegedly obscene work, = and=20 evidence to support a claim that the challenged work has serious = literary,=20 artistic, or scientific merit.

9. Criminal Law: Obscenity: Proof: Intent. When charged as a = criminal=20 offense, each element of an obscenity-related crime, including the = intentional=20 nature of the crime charged, must be proved by the State beyond a = reasonable=20 doubt, just like other criminal charges.

10. Evidence: Words and Phrases. Relevant evidence means = evidence=20 having any tendency to make the existence of any fact that is of = consequence to=20 the determination of the action more probable or less probable than it = would be=20 without the evidence.

11. Judges: Evidence: Appeal and Error. The exercise of = judicial=20 discretion is implicit in determinations of relevancy, and a trial = court=3Ds=20 decision regarding relevancy will not be reversed absent an abuse of = discretion.=20

12. Judges: Words and Phrases. A judicial abuse of discretion = exists=20 when a judge, within the effective limits of authorized judicial power, = elects=20 to act or refrain from action, but the selected option results in a = decision=20 which is untenable and unfairly deprives a litigant of a substantial = right or a=20 just result in matters submitted for disposition through a judicial = system.

13. Evidence: Words and Phrases. Materiality and probative = value are=20 the two components to relevancy.

14. Criminal Law: Trial: Juries: Evidence: Appeal and Error. = In a jury=20 trial of a criminal case, an erroneous evidentiary ruling results in = prejudice=20 to a defendant unless the State demonstrates that the error was harmless = beyond=20 a reasonable doubt.

15. Criminal Law: Obscenity: Proof: Words and Phrases. The = word=20 +obscene+ is a legal term of art, and the = prosecution must=20 prove scienter [+knowingly+] to satisfy the elements of the crime of=20 distributing obscene material.

16. Criminal Law: Obscenity: Proof. In a prosecution for = obscenity,=20 and with regard to scienter, the prosecution need = prove only=20 that the defendant knew the contents of the material and their character = and=20 nature.

17. Trial: Evidence: Appeal and Error. An appellate court must = examine=20 the sufficiency of the evidence presented against a defendant before it = can=20 order a new trial or dismiss the action.

18. Convictions: Evidence: Appeal and Error. Where the issue = of=20 sufficiency of evidence is raised on appeal, if it appears the evidence = is=20 sufficient to support the conviction, the cause may be remanded to a = lower court=20 for further proceedings; if the evidence is not sufficient, the cause = must be=20 dismissed.

19. Obscenity: Juries. A jury is not = empowered=20 with unfettered discretion to determine whether a questioned work is, in = fact=20 and at law, obscene.

20. Constitutional Law: Obscenity: Judgments: Appeal and Error. = An=20 appellate court ordinarily must reach an independent decision regarding = the=20 alleged obscenity of a work, because substantive constitutional = limitations=20 govern.

21. Constitutional Law: Judgments: Appeal and Error. The = Nebraska=20 appellate courts determine questions of constitutional dimension = independent of=20 conclusions reached by trial courts.

22. Obscenity. An object, book, = magazine, or film=20 can be judged obscene only after consideration of the allegedly = objectionable=20 aspects in the context of the entire work.

23. Criminal Law: Obscenity. The +taken as a whole+ doctrine = is a=20 defendant=3Ds doctrine designed to protect against obscenity = prosecutions based=20 upon segments lifted out of the context of the entire work, which = segments=20 distort the thematic context of the work at issue.

24. Criminal Law: Obscenity: Intent. When considering the = intent of a=20 defendant charged with a crime of obscenity, if = that intent=20 is to convey a literary, artistic, political, or scientific idea, or to = advocate=20 a position, then the intent is serious.

MILLER-LERMAN, Chief Judge, and SIEVERS and MUES, Judges.

SIEVERS, Judge.

A jury in the Lancaster County Court convicted Scott A. Harrold of = producing=20 or distributing obscene material, a Class I misdemeanor, in violation of = Neb.=20 Rev. Stat. =A7 28-813(l) (Reissue 1995). Harrold=3Ds sentence was a fine = of $1,000.=20 On appeal, the district court for Lancaster County affirmed Harrold=3Ds = conviction=20 and sentence. On further appeal, we address evidentiary rulings by the = trial=20 court and also the core question of whether Harrold=3Ds self-produced = videotape=20 was obscene.

FACTS

In late 1994, Harrold applied to TV Transmission, Inc., doing = business as=20 Cablevision, for permission to broadcast +Cosmic Comedy,+ a television = series he=20 produced, on Cablevision=3Ds public access channel. Cablevision = transmits cable=20 television programming to its subscribers in and around Lincoln, = Nebraska.

A copy of one of Harrold=3Ds written applications for permission to = broadcast=20 on Cablevision was received in evidence at trial. In it, Harrold = described=20 +Cosmic Comedy+ as an ongoing comedy series, with each episode 30 = minutes in=20 length, and he stated that he anticipated providing Cablevision with = four new=20 episodes of the series each month. It is undisputed on the record that = episodes=20 of the series were generally 30 minutes in length. Harrold specifically = noted in=20 his application that the series depicted or = described sexual=20 or excretory activities or organs and that it also contained reviews of = adult=20 movies. Harrold requested that the series be broadcast at midnight. =

Cablevision granted Harrold=3Ds application, and in late 1994 or = early 1995, he=20 began providing Cablevision with videotaped episodes of his series for = broadcast=20 on Cablevision=3Ds public access channel. After Harrold completed = production of=20 each new episode, he delivered the videotaped episode to Cablevision for = broadcast. Harrold testified that he did not see Cablevision=3Ds = broadcasts of his=20 series, because he did not subscribe to Cablevision=3Ds service. = Episodes of=20 +Cosmic Comedy+ were aired by Cablevision on a regular basis until early = 1997.=20

At trial, Harrold testified that he produced, directed, and often = acted in=20 the +Cosmic Comedy+ episodes which he gave to Cablevision for broadcast. = Harrold=20 explained that he designed the series to be an +experimental showcase,+ = with=20 a theme spoofing cheap science fiction films from = the=20 1950=3Ds. Harrold stated that he had taken a course in +clowndom+ = at a=20 local community college and that he had developed a cadre of a dozen or = more=20 clown characters who intermittently appeared on +Cosmic Comedy.+ These=20 characters included clowns named +Cozblah+ and +Crotchy,+ who appear in = the=20 episode at issue, and +Crappy,+ an older clown whom Harrold described as = Crotchy=3Ds father.

On or about September 14, 1995, Harrold hand delivered a videotaped = episode=20 of the series to Cablevision. This episode was recorded on 3/4-inch = pneumatic=20 videotape, a size and grade which is generally used only in professional = broadcasting. The cover bore handwritten notations by Harrold that the = videotape=20 contained 20 minutes of material for broadcast during the +Cosmic = Comedy+=20 broadcast time period. A Cablevision employee = accepted the=20 videotape from Harrold and gave it to David Grooman, Cablevision=3Ds = public access=20 coordinator. Grooman watched this videotape, which at trial was labeled = as=20 exhibit 1. After viewing Harrold=3Ds videotape, Grooman made a copy of = it on=20 =BD-inch videotape, which is the size of videotape used in most = nonprofessional=20 video cassette machines, and Grooman gave the copy to the Lincoln Police = Department. This videotape was labeled at trial as exhibit 2. = Harrold=3Ds original videotape, exhibit 1, was soon = thereafter=20 broadcast in its entirety by Cablevision on its public access channel at = least=20 once, on or about September 24, 1995.

Exhibit 1, which was never seen by the jury, is 20 minutes in length. = Exhibit=20 2, which was viewed by the jury, is only 16 minutes in length. It is = undisputed=20 that neither the credits nor program title were included in exhibit 2. = There was=20 little other testimony regarding any differences between exhibit 1 and = exhibit=20 2. Exhibit 2 was the only videotape viewed by the jury, because the = State and=20 Harrold=3Ds counsel agreed that the jury would view exhibit 2 in making = its=20 determination. There is no evidence, or assertion by either party, that = there=20 are any differences between exhibit 1 and exhibit 2 which are of any = consequence=20 to our decision.

We have viewed all of exhibit 2, the first 14 =BD minutes of which = shows a=20 head-and-shoulders shot of Harrold in clown makeup, sunglasses, a false = nose,=20 and a close-fitting hat. Harrold appears to mouth words or sounds, and = he=20 grimaces and moves his head about in a writhing manner. The soundtrack=20 accompanying these images contains mainly unintelligible distortions of=20 Harrold=3Ds voice, and the content and meaning of his speech, if any, is = incapable=20 of determination.

Grooman found, as did we, that approximately the last 1 =BD minutes = of=20 Harrold=3Ds videotape is Harrold masturbating, while attired only in a = clown face.=20 In this part of the videotape, Harrold is shown alone, in a reclining = position.=20 He appears to be nude, except for a pair of shiny sunglasses which cover = his=20 eyes, and his face is painted as a clown with a dark beard and white = lips. The=20 camera capturing these images was apparently positioned between = Harrold=3Ds legs,=20 so that the principal image framed by the camera is Harrold=3Ds hands = stroking his=20 erect penis, although his chest and face are visible. After 1 =BD = minutes, Harrold=20 simply stops masturbating, and it appears from exhibit 2 that he does = not=20 ejaculate. Very little sound accompanies the images of Harrold = masturbating.=20 Toward the end of this scene, Harrold makes several largely = unintelligible=20 comments, except that one can hear the phrases +left wing+ and +for the = ladies.+=20

A police officer went to Harrold=3Ds home in late September 1995 and = gave him a=20 citation for distributing obscene material. In his conversation with the = police=20 officer, Harrold admitted that he was the person masturbating in the = videotape=20 provided by Cablevision to the police. An amended charge of distributing = obscene=20 material under =A7 28-813(l)(a) and (b) was filed against Harrold in = November=20 1996.

The amended charge against Harrold was tried to a county court jury = on=20 January 21 through 24, 1997. Before trial = commenced, the=20 trial court sustained several motions in limine by the State. Harrold = was=20 thereby prevented from introducing into evidence regulations of the = Federal=20 Communications Commission (FCC); Cablevision=3Ds rules governing use of = its public=20 access channels, which rules include a protocol regarding distribution = of=20 indecent material; and the opinions of Cablevision and its employees as = to=20 whether Harrold=3Ds videotape contained obscenity. The State also = successfully=20 moved in limine to prevent any evidence regarding whether Cablevision = was=20 charged criminally for broadcasting Harrold=3Ds videotape. The State=3Ds = basis for=20 these motions, and upon which the trial court sustained them, was that = such=20 evidence was not relevant. Harrold twice made offers of proof regarding = the=20 excluded evidence, claiming that the evidence was relevant and went to = his=20 defense theory that the videotape was not obscene and that he did not = knowingly=20 produce or distribute obscene material.

Harrold testified that the content of the +Cosmic Comedy+ series = changed over=20 time, based upon development of various characters and upon input from = program=20 viewers. Harrold also stated that the series often included material = which=20 Harrold intended as political satire. Further, beginning in February = 1995, some=20 of the episodes included reviews of commercially produced X-rated movies = obtained from various rental sources in Lincoln. The reviews were given = by the=20 clown character Crotchy, and they included segments excerpted from the = reviewed=20 films. The clips taken from the reviewed films = always=20 included images of fully nude women engaged in sexual acts and, over = time, also=20 included naked men. There was no evidence that any of these previous = broadcasts=20 had provoked criminal charges against Harrold.

Harrold testified that he rebroadcast the X-rated movie clips = pursuant to a=20 +fair usage+ exception to copyright laws. Harrold stated that he = voluntarily=20 imposed a rating of +NC-17+ (not for children under the age of 17) on = +Cosmic=20 Comedy+ and that he made this rating designation known by visible or = audible=20 means on most episodes. Harrold testified that = when=20 selecting movies for review on +Cosmic Comedy,+ he specifically refused = to use=20 films which depicted sexual acts involving children, bestiality, = torture,=20 incest, or nonconsensual sexual relations.

Shortly before the broadcast of exhibit 1, the videotape which led to = the=20 charges against him, Harrold gave Cablevision a different episode which=20 contained a film excerpt depicting a woman stripping off her clothes and = masturbating. Harrold was not prosecuted for the production or = distribution of=20 that episode. Harrold testified that he received favorable comments from = male=20 viewers about that episode, but at least one female viewer complained = that=20 Harrold=3Ds videotapes focused too much on female nudity and that they = should=20 include more male nudity. Harrold stated that he thereafter produced = exhibit 1,=20 a portion of which included himself nude and masturbating, +in response = to=20 audience input and ... to entertain, make people laugh.+ Harrold=20 testified that the clown character portrayed in the masturbation scene = was=20 Crotchy, who reviewed X-rated films in previous +Cosmic Comedy+ = episodes.=20 Harrold did not deny at trial that he +produced [the videotape with the=20 masturbation scene], directed, and the whole thing.+

As noted above, exhibit 2 included a lengthy section before the = masturbation=20 scene which featured a clown=3Ds face and a nearly incomprehensible = soundtrack.=20 Harrold testified that this character was Cozblah, who +lost his face in = a=20 capsule+ and possessed a +beacon voice,+ which Harrold intentionally = distorted=20 so that Cozblah=3Ds speech was +screechy+ and not readily = understandable. Harrold=20 stated on cross-examination that a viewer not familiar with +Cosmic = Comedy+=20 would not be able to identify this character as Cozblah, or identify his = whereabouts or activities based solely upon the images in exhibit 2. The = change=20 in scenes from Cozblah to the masturbating Crotchy is abrupt, without=20 transition, and devoid of any indication of the impending shift in = subject=20 matter. The scene involving Crotchy likewise ends abruptly.

The county court jury convicted Harrold of producing or distributing = obscene=20 material, and he was fined $1,000. Harrold appealed the conviction to = the=20 Lancaster County District Court, which affirmed the conviction and the = sentence.=20 ln its ruling, the district court stated that +[t]he [district] court = does not=20 believe it is required to make a decision independent of the jury = determining=20 whether the defendant=3Ds videotape is obscene or not obscene.+ Harrold = thereafter=20 timely filed his appeal with this court.

ASSIGNMENTS OF ERROR

Harrold claims on appeal that his conviction and sentence should be = reversed,=20 and he has designated 44 assignments of error. We have reduced these to = seven as=20 follows: (1) The trial court wrongly restricted voir dire of the jury = panel and=20 erroneously overruled Harrold=3Ds motion to quash the panel; (2) the trial court erred in refusing to allow him to = introduce=20 evidence of FCC and Cablevision rules and regulations; (3) the = trial=20 court erred in refusing to allow evidence of the actions and opinions of = Cablevision employees regarding the alleged obscenity of Harrold=3Ds = videotape and=20 in refusing to allow evidence regarding whether = Cablevision=20 was criminally charged for broadcasting Harrold=3Ds videotape; = (4) the=20 trial court, and the district court sifting as an appellate court, erred = in=20 failing to independently determine as a matter of law whether the work = was=20 obscene; (5) the trial court erred in refusing two jury instructions = proposed by=20 Harrold; (6) Harrold=3Ds conviction was not supported by sufficient = evidence; and=20 (7) Harrold received an excessive sentence. We deal only with those = assignments=20 of error necessary to resolve this appeal.

STANDARD OF REVIEW

[1] In all proceedings where the Nebraska Evidence Rules apply, = admissibility=20 of evidence is controlled by the Nebraska Evidence Rules, not judicial=20 discretion, except in those circumstances under the Nebraska Evidence = Rules when=20 judicial discretion is a factor involved in the admissibility of = evidence.=20 State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

[2] In a criminal appeal from county court, appellate courts = generally review=20 for error on the record. See State v. Rubek, 7 Neb. App. 68, 578 = N.W.2d=20 502 (1998).

ANALYSIS

Obscenity and Law.

Section 28-813(l) makes it a crime to knowingly prepare, produce, or=20 distribute obscene material. This statute was promulgated after the U.S. = Supreme=20 Court issued its landmark ruling in Miller v. California, 413 = U.S. 15, 93=20 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Miller reinforced the States=3D = power to=20 regulate +=3Dthe intractable obscenity problem.+=3D 413 U.S. at 16, = quoting=20 Interstate Circuit v. Dallas, 390 U.S. 676, 88 S. Ct. = 1298, 20 L.=20 Ed. 2d 225 (1968) (Harlan, J., concurring and dissenting).

The Miller majority provided the following basic guidelines (the Miller test) for the trier of fact to apply = in=20 determining if a given work is obscene:

(a) whether +the average person, applying contemporary community = standards+=20 would find that the work, taken as a whole, appeals to the prurient = interest ...=20 ; (b) whether the work depicts or describes, in a patently offensive = way, sexual=20 conduct specifically defined by the applicable state law; and (c) = whether the=20 work, taken as a whole, lacks serious literary, artistic, political, or=20 scientific value.

Miller, 413 U.S. at 24.

[3] To regulate or prohibit publications, the State must prove all = three=20 parts of the Miller test. U.S. v. Various Articles of Obscene=20 Merchandise, 709 F.2d 132 (2d Cir. 1983). Nebraska=3Ds present = obscenity=20 statutes are modeled largely after the Miller test. See, e.g., = Neb. Rev.=20 Stat. =A7 28-807(l 0) and (15) (Reissue 1995).

[4] Obscene materials are not within the ambit of speech or press = protected=20 by the First Amendment to the federal Constitution or Neb. Const. art. = 1, =A7 5.=20 See, Miller, supra; Roth v. United States, 354 U.S. 476, = 77 S. Ct.=20 1304, 1 L. Ed. 2d 1498 (1957); State v. American Theater Corp., = 194 Neb.=20 84, 230 N.W.2d 209 (1975). Materials which are = considered=20 indecent, as opposed to obscene, are entitled to constitutional = protection.=20 Manual Enterprises v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 = L. Ed.=20 2d 639 (1962); U.S. v. M-K Enterprises, Inc., 719 F. Supp. 871 = (D. Neb.=20 1989). The U.S. Supreme Court has characterized = the=20 distinction between indecent material entitled to constitutional = protection and=20 unprotected obscenity as a +dim and uncertain line.+ = Jacobellis v.=20 Ohio, 378 U.S. 184, 187, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964). = Appeal=20 to the prurient interest is a key component in determining if a work is = obscene=20 and therefore not constitutionally protected. Miller, supra. = Material does not evoke a prurient interest unless it = has a=20 capacity to provoke +sexual responses over and beyond those that would = be=20 characterized as normal.+ Brockett v. Spokane Arcades, = Inc.,=20 472 U.S. 491, 498,105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985). =

Nudity is not necessarily obscene. Jenkins v. Georgia, = 418 U.S.=20 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974). Likewise,=20 portrayals of sexual activity may not be per se obscene, see=20 Jacobellis, supra; Kois v. Wisconsin, 408 U.S. 229, 92 S. Ct. = 2245, 33 L.=20 Ed. 2d 312 (1972); M-K Enterprises, Inc., supra, even if they are = characterized by some as +dismally unpleasant, uncouth, and tawdry,+ = Manual=20 Enterprises, 370 U.S. at 490.

It is in this context that we use Judge Urbom=3Ds opinion in M-K=20 Enterprises, Inc., supra, as a prime example of the principle that = what most=20 people would find offensive is not necessarily obscene from a = constitutional=20 viewpoint. In M-K Enterprises, Inc., five counts of = obscenity-related=20 crimes were charged against individual and corporate defendants selling = sexually=20 explicit material in southeast Nebraska. The case was tried to the = court, which=20 found that three of the four works at issue were obscene. The fourth work, a commercially produced videotape = entitled +The=20 Event,+ contained images of heterosexual sexual activity, including = vaginal=20 intercourse and fellatio between two men and a woman; homosexual anal=20 intercourse and fellatio between two men; and cunnilingus between two = women. The=20 trial court applied its understanding of contemporary community = standards of an=20 average person in southeast Nebraska and found that +[i]t is unbridled = sex, the=20 eager, unabashed, no-holds-barred doing of raw sex--oral, manual, = vaginal, anal,=20 heterosexual and homosexual--in multiple positions and in wearisome = repetition.+=20 719 F. Supp. at 878. Despite the graphic nature of the videotape=3Ds=20 representations, the trial court nonetheless found the videotape not = obscene,=20 holding that

[the videotape] is a crude expression of a primitive passion, = exaggerated by=20 patently offensive full-screen close-ups of the sex parts in action. = That is=20 what it is, nothing more and nothing less.
There is no force, no = deliberate=20 pain, no inanimate insertions, no bondage, no involvement of children or = animals=20 and no deception.

Id. The court found that despite the videotape=3Ds graphic = nature, it did not appeal to the +darker side of sex,+ and that, = therefore, the videotape was not illegally obscene. Id. = Accord,=20 Manual Enterprises, supra; City of St. George v. Turner, = 860 P.2d=20 929 (Utah 1993); People v. Correa, 191 Ill. App. 3d 823, 548 = N.E.2d 351=20 (1989).

[5, 6] In determining whether a work appeals to the prurient interest = under=20 the first prong of the Miller test, it must be judged as a whole, = and not=20 on the basis of isolated portions. Miller v. California, = 413 U.S.=20 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); Roth v. United States, = 354=20 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). The context in which = the=20 sexual material is presented must also be considered. See Kois, = supra. A=20 leading scholar in this field has suggested that the whole work = concept=20 may well be identical to the dominant theme concept in Roth, = supra.=20 See Frederick F. Schauer, The Law of Obscenity (1976).

[7] If a work=3Ds predominant appeal, = considered in the=20 context of the work=3Ds entirety, is to sexual interest that is not = deviant, the=20 work may be considered indecent rather than obscene and, thus, entitled = to=20 constitutional protection. Brockett, supra; Jenkins, supra; = Jacobellis=20 v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964); = U.S. v.=20 M-K Enterprises, Inc., 719 F. Supp. 871 (D. Neb. 1989). We note, = however,=20 that indecent material may be subject to = legitimate=20 regulation as to the time, place, and manner of its publication. = See,=20 Sable Communications of Cal., Inc. v. FCC, 492 U.S. = 115,109 S. Ct.=20 2829,106 L. Ed. 2d 93 (1989); FCC v. Pacifica Foundation, 438 = U.S. 726,=20 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978).

[8,9] A person charged civilly or criminally with violating the = Nebraska=20 obscenity statutes is entitled to present evidence in his or her defense = and in=20 support of his or her theory of defense, including, but not limited to, = expert=20 witnesses; proof of financial interest, or lack thereof, in the = allegedly=20 obscene work; and evidence to support a claim that the challenged work = has=20 serious literary, artistic, or scientific merit. Neb. Rev. Stat. =A7=A7 = 28-814 and=20 28-815 (Reissue 1995); Main Street Movies v. Wellman, 251 = Neb.=20 367, 557 N.W.2d 641 (1997). When charged as a criminal offense, each = element of=20 an obscenity-related crime, including the intentional nature of the = crime=20 charged, must be proved by the State beyond a reasonable doubt, just = like other=20 criminal charges. See, e.g., Pope v. Illinois, 481 U.S. 497,107 = S. Ct.=20 1918, 95 L. Ed. 2d 439 (1987).

Exclusion of Cable Vision Rules from Evidence.

Harrold has assigned error to several evidentiary rulings by the = trial court.=20 We touch on these matters only briefly, because we are convinced that = ultimately=20 our duty in this case is to say whether 16 minutes of videotape, with=20 approximately 90 seconds of Harrold masturbating, is obscene.

Harrold wanted to offer evidence (1) that there were Cablevision = rules in a=20 handbook allowing the broadcast of indecent material between midnight = and 1=20 a.m., (2) that obscene material could not be broadcast on the public = access=20 channel, (3) that questionable material was reviewed by the Cablevision = advisory=20 board, and (4) that Cablevision was not prosecuted for showing = Harrold=3Ds=20 videotape to the public. The trial court sustained the State=3Ds motions = in limine=20 on these matters. Thus, Harrold was foreclosed from the obvious defense (1) that his videotape could not have been = obscene because=20 it was broadcast by Cablevision, and by its rules, Cablevision did not = broadcast=20 obscene material; (2) that his videotape could not have been obscene = because it=20 was not reviewed by the advisory board, whose job it was to review = questionable=20 programs; (3) that Cablevision obviously +distributed+ the videotape by=20 broadcasting it but that neither Cablevision nor its employees were = prosecuted;=20 and (4) that Harrold=3Ds submission was in accordance with the rules on = indecent=20 material and that thus he did not have the requisite criminal intent to=20 distribute obscene material. Procedurally, Harrold preserved his = right of=20 appellate review on these evidentiary matters.

[10-12] Relevant evidence means evidence having any tendency to make = the=20 existence of any fact that is of consequence to the determination of the = action=20 more probable or less probable than it would be without the evidence. = State=20 v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996), relying on Neb. = Rev. Stat.=20 =A7 27-401 (Reissue 1995). All relevant evidence normally is admissible, = and=20 conversely, evidence which is not relevant is not admissible. = McBride, supra.=20 The exercise of judicial discretion is implicit in determinations of = relevancy, and a trial court=3Ds decision regarding relevancy will not = be reversed=20 absent an abuse of discretion. Id. A judicial abuse of discretion = exists=20 when a judge, within the effective limits of authorized judicial power, = elects=20 to act or refrain from action, but the selected option results in a = decision=20 which is untenable and unfairly deprives a litigant of a substantial = right or a=20 just result in matters submitted for disposition through a judicial = system.=20 State v. Vogel, 247 Neb. 209, 526 N.W.2d 80 (1995).

[13, 14] Materiality and probative value are the two components to = relevancy.=20 State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994). +Materiality = pertains=20 to the relation between the proposition for which the evidence is = offered and=20 the issues in the case. Id. If the evidence is offered to help = prove a=20 proposition which is not a matter in issue, the evidence is immaterial.=20 Id. What is +=3Din issue+=3D within the litigated controversy is = determined=20 by the pleadings in the case, read in light of the rules of pleading and = controlled by applicable substantive law. Id. at 844, 524 N.W.2d = at 48.=20 Probative value, the second prong of relevance, is a relative concept. = State=20 v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997). It involves a = measurement=20 of the degree to which the evidence persuades the trier of fact that the = particular fact exists, and a measurement of the distance of the = particular fact=20 from the ultimate issues of the case. Id. In a jury trial of a = criminal=20 case, an erroneous evidentiary ruling results in prejudice to a = defendant unless=20 the State demonstrates that the error was harmless beyond a reasonable = doubt.=20 State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998).

The State=3Ds burden was to prove beyond a reasonable doubt that = Harrold=20 knowingly produced or distributed obscene material, thus putting his = intent at=20 issue. Harrold attempted to show that he did not knowingly violate =A7 = 28-813(l),=20 because he complied with the Cablevision rules handbook. Further, = Harrold=20 attempted to show that because the videotape was aired, it was only = indecent and=20 not obscene. The material excluded by the successful motions in limine = would=20 have been components of this intent-based defense.

[15, 16] In Hamling v. United States, 418 U.S. 87, 94 S. Ct. = 2887, 41=20 L. Ed. 2d 590 (1974), the U.S. Supreme Court reiterated its conclusion = from=20 earlier cases that the word + obscene,+ as it was used in that case to = describe=20 or categorize a criminal offense, is a legal term of art and that the=20 prosecution must prove scienter to satisfy the elements of the crime of=20 distributing obscene material. The law is the same in Nebraska. State = v.=20 American Theatre Corp., 196 Neb. 461, 244 N.W.2d 56 (1976). In Hamling, the U.S. Supreme Court specifically = declined to=20 require proof of a defendant=3Ds actual knowledge of the legal status of = the=20 materials claimed to be obscene. Accord, State v. Embassy Corp., = 215 Neb.=20 631, 340 N.W.2d 160 (1983); American Theatre Corp., supra = (holding that=20 prosecution need prove only that defendant knew contents of material and = their=20 character and nature). As the Nebraska Supreme Court noted, quoting = Hamling,=20 +=3DTo require proof of a defendant=3Ds knowledge of the legal = status of the=20 materials would permit the defendant to avoid prosecution by simply = claiming=20 that he had not brushed up on the law.+=3D

American Theatre Corp., 196 Neb. at 471, 244 N.W.2d at 62. But as = the=20 court in American Theatre Corp. observed, Nebraska statutes = incorporate a=20 requirement that the distribution be made +=3Dknowingly.+=3D Id. = at 470, 244=20 N.W.2d at 62. We take that to mean that the = defendant knows=20 the contents, nature, and character of the material at issue. =

In one of his offers of proof, Harrold attempted to testify that he = believed=20 the videotape was indecent, but not obscene. Harrold and Grooman = testified that=20 during the 6-month period preceding this videotape=3Ds broadcast, = numerous=20 episodes of +Cosmic Comedy+ contained explicit scenes of nude males and = females=20 engaged in graphic sexual acts, and Harrold testified that at least one = episode=20 depicted a female stripping off her clothes and masturbating. There is = no=20 evidence in the record that Cablevision or any other entity questioned = whether=20 such images were obscene, submitted the prior programs to the advisory = board, or=20 attempted to prevent or otherwise suppress the broadcast of the = videotapes.

Harrold stated, in an offer of proof, that he believed the X-rated = movie=20 excerpts which he included in previous +Cosmic Comedy+ episodes, and = which were=20 broadcast without inquiry or complaint, were representative of the = community=20 standard referred to in the Cablevision rules handbook upon which he = relied=20 generally and upon which he specifically relied as to the challenged = material.=20 We do not understand how the rules governing what=20 Cablevision would or would not broadcast could not be relevant. The = rules tend=20 to show, given Harrold=3Ds testimony and the fact that the videotape was = broadcast, that his videotape was only indecent, and that he did not = knowingly=20 distribute obscene material. Harrold was entitled to have the jury = consider the=20 rules and the obvious inferences deducible therefrom in light of the = fact that=20 the videotape was broadcast, as was an earlier work showing a female = disrobing=20 and masturbating, without any prosecution. Such evidence also = clearly=20 goes to the issues of +contemporary community standards+ and patent=20 offensiveness, given that what Cablevision = decides to=20 broadcast is both a measurement and source of community = standards.=20

We also find that the State +opened the door+ for the admission of = the=20 contested evidence by asking Harrold on cross-examination: +And you = wanted your=20 movies shown -- or your videos shown after midnight because you thought = that=20 that might lessen the possibility that children or juveniles would be = exposed to=20 it, correct?+ Obviously constrained by the court=3Ds prior ruling = excluding=20 evidence of Cablevision=3Ds rules, Harrold answered: +I couldn=3Dt = answer that=20 question =3Dcause I can=3Dt -- I can=3Dt tell who=3Ds gonna be watching = what.+ The State=20 further inquired: +You just asked to have it run after midnight because = you like=20 having it run after midnight, no other reason?+

At this point, Harrold=3Ds counsel objected and argued unsuccessfully = that the=20 State had +opened the door+ to the definitions and regulatory content = contained=20 in the previously excluded Cablevision rules and handbook, which = included rules=20 regarding the permissible time for broadcasting indecent material. = Harrold=3Ds=20 counsel made another offer of proof. The trial court again refused to = allow=20 Harrold to introduce such evidence. We hold that the trial court abused = its=20 discretion in preventing Harrold from offering evidence about = Cablevision=3Ds=20 rules to respond to previously prohibited evidentiary topics broached by = the=20 State on cross-examination. The State asked Harrold why he wanted the = videotape=20 shown after midnight, and he should have been allowed to answer, using = the=20 Cablevision rules.

Harrold admitted in his offer of proof that the work at issue was = indecent,=20 but he denied that it was obscene. As shown by his offers of proof, = Harrold=20 testified that he was familiar with the distinction between these terms = as set=20 forth in the Cablevision rules and that he affirmatively sought to abide = by=20 these rules, including ensuring that +Cosmic Comedy+ was broadcast only = during=20 such times as permitted by Cablevision for indecent material. That = evidence was=20 relevant. Moreover, the State +opened the door+ on the matter and = magnified its=20 importance to the jury by attacking Harrold=3Ds reasons for his = requested time of=20 broadcast.

Without the Cablevision rules being admitted into evidence, the jury = could=20 have inferred from the State=3Ds cross-examination of Harrold that his = request for=20 late night broadcast time was indicative of his knowledge that the = videotape was=20 obscene and unfit to be seen. But had the rules been in evidence, the = jury could=20 have alternatively inferred that Harrold thought the material was merely = indecent and therefore permissible for broadcast at certain hours and = that=20 Harrold=3Ds intent was only to distribute lawful, indecent material. =

As a result of the trial court=3Ds rulings, the jury was likewise = prevented=20 from learning that Grooman, Cablevision=3Ds public access coordinator, = followed a=20 particular procedure when arguably obscene materials were submitted for=20 broadcast but that he did not follow that process in connection with = Harrold=3Ds=20 work. Harrold could posit a favorable inference therefrom that Grooman = had=20 concluded that the material was not obscene, which goes to the issue of=20 contemporary community standards. Had the jury known that Grooman had = not=20 submitted Harrold=3Ds material to the board, one permissible inference = for the=20 jury was that Cablevision, like Harrold, considered the videotape at = issue to be=20 indecent and suitable for broadcast, but not obscene.

In a jury trial of a criminal case, an erroneous evidential ruling = results in=20 prejudice to a defendant unless the State demonstrates that the error = was=20 harmless beyond a reasonable doubt. State v. Buechler, 253 Neb. = 727, 572=20 N.W.2d 65 (1998). We cannot conclude that the trial court=3Ds error in = refusing to=20 admit the disputed evidence was harmless beyond a reasonable doubt. = Therefore,=20 the rulings on evidence would mandate, at a minimum, a reversal and a = new trial.=20

Sufficiency of Evidence and independent Appellate Review of = Work.=20

[17] Although we would reverse Harrold=3Ds conviction based on a = prejudicial=20 evidentiary ruling, we must examine the sufficiency of the evidence = presented=20 against him before we can order a new trial. See, State v. Christner, = 251=20 Neb. 549, 557 N.W.2d 707 (1997); State v. Lee, 227 Neb. 277, 417 = N.W.2d=20 26 (1987). See, also, State v. Palmer, 224 Neb. 282, 399 N.W.2d = 706=20 (1986).

[18] In Lee, supra, the Nebraska Supreme Court stated that = where the=20 issue of sufficiency of evidence is raised on appeal, as in the instant = case,=20 +[i]f it appears the evidence is sufficient to support the convictions, = the=20 cause may be remanded to the district court for further proceedings; if = the=20 evidence is not sufficient ... the cause must be dismissed.+ 227 Neb. at = 283,=20 417 N.W.2d at 30. Additionally, we must speak to the scope of appellate = review=20 in an obscenity prosecution.

[19] On appeal to this court, Harrold claims = that the=20 district court erred in failing to make a determination independent of = the=20 jury=3Ds findings, whether the work was obscene as a matter of law, = given the=20 protections of the 1st and 14th Amendments to the federal Constitution. = Nebraska=20 law provides that criminal prosecutions involving the ultimate issue of=20 obscenity shall be tried to a jury, unless the defendant so charged = waives the=20 right to jury trial and opts for trial to the court. =A7 28-814(l). = However, it=20 has long been the law that a jury is not empowered with unfettered = discretion to=20 determine whether a questioned work is, in fact and at law, obscene. = In=20 Jenkins v. Georgia, 418 U.S. 153,160, 94 S. Ct. 2750, 41 = L. Ed. 2d=20 642 (1974), the U.S. Supreme Court held:

Even though questions of appeal to the +prurient interest+ or of = patent=20 offensiveness are to essentially questions of fact,+ it=20 would be a serious misreading of Miller [v. California] to = conclude=20 that juries have unbridled discretion in determining what is = +patently=20 offensive.+ Not only did we there say that +the First Amendment = values=20 applicable to the States through the Fourteenth Amendment are adequately = protected by the ultimate power of appellate courts to conduct an = independent=20 review of constitutional claims when necessary,+ . . . but we made it = plain that=20 under that holding +no one will be subject to prosecution for the sale = or=20 exposure of obscene materials unless these materials depict or describe = patently=20 offensive =3Dhard core=3D sexual conduct......

[20] The constitutional duty of judicial review of allegedly obscene=20 material, independent of a jury=3Ds conclusions, springs from +the inherent dangers of undertaking to regulate any = form of=20 expression.+ Miller v. California, 413 U.S. 15, 23, 93 S. = Ct.=20 2607, 37 L. Ed. 2d 419 (1973). In Jenkins, supra, the U.S. = Supreme Court=20 reiterated the premise articulated in Jacobellis v. Ohio, 378 = U.S.=20 184,187-88, 84 S. Ct. 1676,12 L. Ed. 2d 793 (1964), and relied upon in=20 Miller

Application of an obscenity law to suppress a motion picture thus = requires=20 ascertainment of the +dim and uncertain line+ that often separates = obscenity=20 from constitutionally protected expression. . . . Since it is only = +obscenity+=20 that is excluded from the constitutional protection, the question = whether a=20 particular work is obscene necessarily implicates an issue of = constitutional=20 law.

Regardless of the jury=3Ds finding that a particular work is obscene, = an=20 appellate court ordinarily must reach an independent decision regarding = the=20 alleged obscenity of the work, because substantive constitutional = limitations=20 govern. See Miller, supra. Accord, Jenkins, supra; = Kois v.=20 Wisconsin, 408 U.S. 229, 92 S. Ct. 2245, 33 L. Ed. 2d 312 (1972);=20 Jacobellis, supra. The constitutional limitations involved in an=20 obscenity case are issues of law.

[21] As a general rule, the Nebraska appellate courts determine = questions of=20 constitutional dimension independent of conclusions reached by trial = courts.=20 State v. Sommerfeld, 251 Neb. 876, 560 N.W.2d 420 (1997). Relying = on=20 Jacobellis, the Nebraska Supreme Court adopted the practice of=20 independent judicial review of allegedly obscene materials in State = v.=20 American Theater Corp., 194 Neb. 84, 230 N.W.2d 209 (1975).

Following application of the Miller standards by the fact = finder, the=20 final measure of scrutiny comes in the form of appellate court = assessment of the=20 alleged obscenity of the work as a matter of law, a conclusion arrived = at=20 independent of the jury=3Ds findings. As expressed by Justice Harlan in = his=20 separate concurrence and dissent in Roth v. United States, 354 = U.S. 476,=20 497, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957):

Every communication has an individuality and +value+ of its own. The=20 suppression of a particular writing or other tangible form of expression = is,=20 therefore, an individual matter, and in the nature of things = every such=20 suppression raises an individual constitutional problem, in which a = reviewing=20 court must determine for itself whether the attacked expression = is=20 suppress[i]ble within constitutional standards. = Since those=20 standards do not readily lend themselves to generalized definitions, the = constitutional problem in the last analysis becomes one of = particularized=20 judgments which appellate courts must make for themselves.

In concluding that an appellate court is bound to conduct an = independent=20 review of the allegedly obscene material as a whole, we follow precedent = set by=20 federal courts and the Nebraska Supreme Court, as well as the practice = of a=20 multitude of other state courts. See, e.g., People v. Correa, = 191=20 Ill. App. 3d 823, 548 N.E.2d 351 (1989); Little Store, Inc. v. State, = 295=20 Md. 158, 453 A.2d 1215 (1983); People v Austin, 76 Mich. App. = 455,257=20 N.W.2d 120 (1977); State v. Davidson, 481 N.W.2d 51 (Minn. 1992); = McNary v. Carlton, 527 S.W.2d 343 (Mo. 1975); Urbana, ex = rel.=20 Newlin, v. Downing, 43 Ohio St. 2d 109, 539 N. E.2d 140 (1989), = cert.=20 denied 493 U.S. 934, 110 S. Ct. 325, 107 L. Ed. 2d 315 (1989); = Rees v.=20 State, 909 S.W.2d 264 (Tex. App. 1995), cert. denied ____ = U.S. ____,=20 ____ S. Ct. ____, 136 L. Ed. 2d 111 (1996); City of St. George v. = Turner,=20 860 P.2d 929 (Utah 1993). Compare, City of Farmington v. Fawcett, = 114=20 N.M. 537, 843 P.2d 839 (N.M. App. 1992).

+Whole Work+ Doctrine.

Under the test to determine obscenity articulated by the U.S. Supreme = Court=20 in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 = L. Ed. 2d=20 419 (1973), and incorporated into =A7 28-807, an appellate court is = required to=20 review the allegedly obscene work by considering the work as a whole. = See =A7=20 28-807(10)(a). Specifically, in determining whether a work appeals to = the=20 prurient interest, it must be judged as a whole, and not on the basis of = its=20 isolated parts. Miller, supra; Roth, supra. Accord State v.=20 Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987). The context in which the = sexual=20 material is presented must also be considered. Kois v. Wisconsin, = 408=20 U.S. 229, 92 S. Ct. 2245, 33 L. Ed. 2d 312 (1972). Compare, Rees, = 909=20 S.W.2d at 268 (reviewing allegedly obscene material in +thematic = units+). It has=20 been held that failure to present and consider the challenged work in = its=20 entirety may be prejudicial error. See, e.g., Cambist Films, Inc. v. = Duggan,=20 298 F. Supp. 1148 (W.D. Pa. 1969), revd on other grounds 420 = F.2d 687=20 (3d Cir. 1969); Deverell v. Com., 539 S.W.2d 301 (Ky. 1976). It = is at=20 this point that our dissenting colleague parts company with us. We = disagree on=20 what the whole work doctrine means in the context of this case, and = because of=20 its impact on the ultimate resolution of the appeal, we discuss the = whole work=20 doctrine at some length. This takes us back to exhibits 1 and 2.

It is clear that exhibit 2 is somewhat different from exhibit 1. = Exhibit 1 is=20 the original 3/4-inch videotape actually produced by Harrold and = broadcast by=20 Cablevision. Exhibit 2 does not contain a title, credits, or other = information=20 which identifies the episode. Exhibit 2 is 16 minutes in length, not 20 = minutes=20 as indicated on the jacket of exhibit 1. Exhibit 1 was offered into = evidence=20 without objection, but not shown to the jury. Exhibit 2 was also offered = into=20 evidence. Harrold and the State agreed that exhibit 2, which is not the = entire=20 original work, would be shown to the jury in order to determine the = issue.=20 Neither side to the case asked that exhibit 1 be shown to the jury. = Harrold did=20 not claim at trial, nor does he now claim, that exhibit 1 contains = material=20 which proves that the work at issue is not obscene.

In summary, the trial record reveals that the State and Harrold were=20 completely content to try the obscenity question by using only exhibit = 2. As we=20 understand the dissent of our esteemed colleague, it is that we as an = appellate=20 court must view exhibit 1, the original videotape, in order to determine = whether=20 the whole work is obscene, despite the absence of a claim by the State = that it=20 contains material which anyone could consider obscene. In contrast, we = believe=20 that the whole work doctrine is applied to ensure that an obscenity = conviction,=20 which represents governmental censorship, is not based on an = unrepresentative=20 piece of the whole, taken out of context, which piece distorts the theme = of a=20 work so that the work appears other than it really is. The doctrine also = serves=20 to ensure that triers of fact and appellate courts see the actual work = at issue,=20 as opposed to relying on someone else=3Ds description or = characterization thereof.=20 In the context of how this case was tried, we believe that the whole = work=20 doctrine does not require an appellate viewing of exhibit 1, unless = we=20 were prepared to say that the 90 seconds of Harrold stroking himself = makes=20 exhibit 2 obscene. In that instance, our colleague=3Ds view might be = correct,=20 despite the absence of a claim from Harrold that we must view exhibit 1. =

In reaching the foregoing conclusion, we rely on the progression of = the law=20 of obscenity, illustrated by the U.S. Supreme Court=3Ds summary in = Roth v.=20 United States, 354 U.S. 476, 488-89, 77 S. Ct. 1304, 1 L. Ed. 2d = 1498=20 (1957), which recounts that the early legal standard of obscenity = +allowed=20 material to be judged merely by the effect of an isolated excerpt upon=20 particularly susceptible persons. Regina v. Hicklin, [1868] L. R. = 3 Q. B.=20 360.+ The Roth Court rejected the earlier Hicklin standard = because=20 judging obscenity by the effect of isolated passages upon susceptible = persons=20 could lead to the suppression of material legitimately dealing with sex, = and=20 such a standard constituted an unconstitutional restriction of the = freedoms of=20 speech and press. Thereafter, in Memoirs v. Massachusetts, 383 = U.S. 413,=20 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), the Court held that for there to be a finding of obscenity, (1) the dominant = theme of=20 the material taken as a whole must appeal to a prurient interest in sex, = (2) the=20 material is patently offensive because it offends contemporary community = standards relating to the description or representation of sexual = matters, and=20 (3) the material is utterly without redeeming social value. While the = third=20 factor has been modified by Miller v. California, 413 U.S. 15, 93 = S. Ct.=20 2607, 37 L. Ed. 2d 419 (1973) (whether work taken as whole lacks serious = literary, artistic, political, or scientific value), the first two = factors=20 retain their vitality.

[22] An isolated portion of a movie cannot be extracted out of the = context of=20 the whole, and the entire movie judged thereon. La Rue v. State of=20 California, 326 F. Supp. 348 (1971). Put another way, the object, = book,=20 magazine, or film can be judged obscene only after consideration of the=20 allegedly objectionable aspects in the context of the entire work. = Bryers v.=20 State, 480 S.W.2d 712 (Tex. 1972). In United States v. Head, = 317 F.=20 Supp. 1138,1142 (E.D. La. 1970), the court interpreted the Supreme = Court=3Ds=20 obscenity pronouncements as +consistently unanimous on the proposition = that=20 material must be judged as a whole in order to determine whether it is = obscene,=20 before it can be suppressed because it contains offensive segments.+ =

In State v. Starr Enterprises, Inc., 226 Kan. 288, 597 P.2d 1098 = (1979),=20 the Supreme Court of Kansas saw the phrase +taken as a whole+ as being = used to=20 eliminate segmented reviews of material, and the court quoted as follows = from=20 Penthouse Intern., Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. = 1978):=20

+First, the =3Dtaken as a whole=3D standard of Miller is not = really new=20 ... and simply reflects in essence the practical fact that an arguably = obscene=20 book or magazine is going to be published or banned as a discreet = unit.... A=20 magazine is a =3Dwhole=3D within the meaning of Miller and it = must be judged=20 as such.+

226 Kan. at 293, 597 P.2d at 1103.

[23] Based on the time-honored rejection by the Roth Court of = the=20 Hicklin test, we believe that the +taken as a whole+ doctrine is = a=20 defendant=3Ds doctrine designed to protect against prosecutions based = upon=20 segments lifted out of the context of the entire work, which segments = distort=20 the thematic context of the work at issue.

We acknowledge the repeated +mantra+ in the cases about reviewing the = entire=20 work or the whole work. But we have found neither authority nor a = rationale for=20 using the whole work doctrine to reverse a conviction but still allow = further=20 prosecution, as our colleague=3Ds dissent would do, simply because the = record=20 contains a piece of the work which neither prosecution nor defense = thought=20 material for the jury to convict or acquit. In short, we have found no = case=20 where an appellate court has reversed because it could not, or did not, = watch a=20 piece of film which neither prosecution nor defense thought the jury = should see.=20

In reaching a conclusion on how the whole work doctrine should be = applied, we=20 rely on the fundamental role that the adversary system plays in trials. = If=20 exhibit 1 contained either incriminating or exculpatory information, one = side or=20 the other would have played the extra 4 minutes for the jury. And we = cannot=20 ignore the fact that neither side asks that we view exhibit 1. = Therefore, we=20 believe that the whole work doctrine, in the unusual context of this = case, means=20 that our independent appellate review of this case requires scrutiny = only of the=20 work which was played for the jury and which the State contends is = obscene. That=20 work, exhibit 2, was agreed by the State and the defense to be the work = upon=20 which Harrold=3Ds guilt would be decided. In short, both parties, by = their conduct=20 at trial and upon appeal, have made exhibit 2 the +whole work.=3D = Accordingly, we=20 refrain from invoking our Neb. Ct. R. of Prac. 5B(7) (rev. 1996) making = VHS the=20 appellate standard videotape and providing that +[i]f any other = videotape, e.g.,=20 Beta, is presented to the court+ then the submitting party shall provide = at his=20 or her expense +the appropriate equipment for playback.+ As we believe = viewing=20 exhibit 1 is superfluous for purposes of our review, we now turn to the = core of=20 this case, which cannot be avoided. Do we, as the reviewing appellate = court,=20 find the work to be obscene?

Is Exhibit 2 Obscene?

Exhibit 2 contains 141/2 minutes of a = head-and-shoulders=20 shot of Harrold in space traveler/clown makeup, bathed in a greenish = light, with=20 unintelligible noise in the background. Without warning or apparent = reason, the=20 videotape immediately switches to a shot of part of the legs, torso, and = face of=20 a nude Harrold, in clown face, stroking his erect penis. The = masturbation lasts=20 for 1 =BD minutes, and there is no ejaculation. The only intelligible = statements=20 we can discern are +left wing+ and +for the ladies.+ Earlier in = this=20 opinion, we recounted Harrold=3Ds description of the videotape: It = portrays one of=20 his clown characters, Cozblah, traveling in space, and then another = clown=20 character, Crotchy, masturbating. The masturbation is allegedly in = response to a=20 viewer=3Ds complaint about Harrold=3Ds videotapes not showing enough = male nudity.=20 Testing the 16-minute videotape against the three prongs of the Miller = test, and=20 reminding ourselves that all three prongs must be proved by the State, = see=20 U.S. v. Various Articles of Obscene Merchandise, 709 F.2d 132 (2d = Cir.=20 1983), we conclude that Harrold=3Ds videotape is not obscene.

To a viewer who happened to stumble upon it, the first 14 =BD minutes = would=20 make absolutely no sense, and we have difficulty imagining anyone = finding that=20 portion educational, enlightening, humorous, or thought provoking. The = last 1 =BD=20 minutes do not improve the videotape or change any of the above = observations.=20 Perhaps a regular viewer of Harrold=3Ds +program,+ which the evidence = indicates=20 was broadcast over a rather lengthy period of time on the public access = channel,=20 might find some humor in the two +clowns+ portrayed in different = situations.=20 However, any humor or other entertainment from the videotape could only = have=20 been appreciated by the regular and initiated viewer of Harrold=3Ds = work. Whether=20 there were any such people, we simply do not know.

[24] As was stated in State v. Walden Book Co., 386 So. 2d = 342, 345=20 (La. 1980), regarding the +serious value+ of a work:

The addition of the +serious+ element allows the trier of fact to = look to the=20 intent upon which the insertion of literary, artistic, political, or = scientific=20 material is based. If that intent is to convey a literary, artistic, = political,=20 or scientific idea, or to advocate a position, then the intent is=20 +serious.+

The second prong of the Miller test is whether the work = depicts in a=20 patently offensive way sexual conduct specifically defined by the = applicable=20 state law. The first prong of the Miller test is whether the = average=20 person, applying contemporary community standards, would find that the = work=20 taken as a whole appeals to prurient interest. +Prurient interest+ and = +patently=20 offensive+ may, to some extent, be discussed together. In a footnote, = the Supreme Court in Roth v. United States, 354 U.S. = 476, 487=20 n.20, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), set forth a number of = definitions=20 of +prurient+ and because of its significance, we quote verbatim:

/. e., material having a tendency to excite lustful thoughts. = Webster=3Ds New=20 International Dictionary (Unabridged, 2d ed., 1949) defines prurient, = in=20 pertinent part, as follows:
+. . . Itching; longing; uneasy with = desire or=20 longing; of persons, having itching, morbid, or lascivious longings; of = desire,=20 curiosity, or propensity, lewd . . . .+
Pruriency is defined, = in=20 pertinent part, as follows:
+. . . Quality of being prurient; = lascivious=20 desire or thought. . . .+
See also Mutual Film Corp. v. = Industrial=20 Commn, 236 U. S. 230, 242, where this Court said as to motion = pictures: +. .=20 . They take their attraction from the general interest, eager and = wholesome [as]=20 it may be, in their subjects, but a prurient interest may be = excited=20 and appealed to. . . .+ (Emphasis added.)
We perceive no = significant=20 difference between the meaning of obscenity developed in the case law = and the=20 definition of the A. L. I., Model Penal Code, =A7 207.10(2) (Tent. Draft = No. 6,=20 1957), viz.:
+. . . A thing is obscene = if,=20 considered as a whole, its predominant appeal is to prurient interest, = I. e., a=20 shameful or morbid interest in nudity, sex, or excretion, and if it goes = substantially beyond customary limits of candor in description or = representation=20 of such matters See Comment, id., at 10, and the discussion at = page 29=20 et seq.
This footnote in Roth has led one author to = write:=20
[P]rurient appeal merely means sexually stimulating, and that seems = to have=20 been the purpose of the prurient-interest requirement. Not all = discussions or=20 pictures of sexual activity are necessarily stimulating sexually, so it = is this=20 narrowing that seems the purpose of the requirement. It is those = materials that=20 have potentially physical as opposed to intellectual effect that are to = be=20 within the ambit of the obscenity laws. This separation of the physical = from the=20 intellectual appears to explain the necessity of an appeal to the = prurient=20 interest.

Frederick F. Schauer, The Law of Obscenity =A7 5.1 at 98 = (1976). Schauer=20 also states that the prurient appeal requirement ensures that not every=20 discussion or depiction of sex may be characterized as obscene. In = Cohen v.=20 California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), = the Court=20 said that whatever else may be necessary to give = rise to the=20 State=3Ds broad power to prohibit obscene expression, such expression = must be, in=20 some significant way, erotic.

In United States v. A Motion Picture Film, 404 F.2d 196 (2d = Cir.=20 1968), the Second Circuit Court of Appeals reversed a jury=3Ds finding = that the=20 motion picture +I Am Curious-Yellow+ was obscene. The court concluded = that=20 although sexual conduct was undeniably an important aspect of the film, = and may=20 be one of its principal themes, it could not be said that +=3Dthe = dominant theme=20 of the material taken as a whole appeals to a prurient interest in = sex.+=3D=20 Id. at 199.

Applying these notions to Harrold=3Ds work, we = hold that=20 exhibit 2, taken as a whole, does not appeal to a prurient interest, = i.e., a=20 shameful or morbid interest in sex. The videotape as a whole is hardly = erotic=20 and cannot be said to appeal to and excite a prurient interest in sex.=20 Certainly, it does not appeal to the +darker side of sex,+ in the words = of=20 U.S. v. M-K Enterprises, Inc., 719 F. Supp. 871, 878 (D. Neb. = 1989). The=20 videotape does not show exploitive or violent sex; involves no children, = animals, or objects; and shows only a brief and solitary act of = incomplete=20 self-gratification. Moreover, its dominant theme, if measured on a time = basis,=20 is not sexual. The great majority of the videotape shows Harrold=3Ds = space=20 traveler clown, Cozblah, depicted in a completely benign, albeit = strange, way.=20 Its theme, according to Harrold=3Ds testimony, is the humorous depiction = of=20 Harrold=3Ds clown characters. We cannot conclude that the average = person, applying=20 contemporary community standards of the late 1990=3Ds, would find that = the 16=20 minutes of videotape in exhibit 2 appeals to a prurient interest in sex. = Whom or=20 what it appeals to is a much more difficult question, and one which we = cannot=20 answer.

Turning to the patently offensive prong, we again rely on Schauer=3Ds = analysis:=20

The development of the +patently offensive+ standard also explains = its=20 meaning, for in each of the uses of the term prior to Miller it = was=20 equated with an affront to or surpassing of the current level of = society=3Ds=20 acceptance of sexual depictions or descriptions. Nowhere in the Supreme = Court=20 cases is there any reference to dictionary definitions of patent = offensiveness,=20 and it seems clear that the intent was for the trier of fact to gauge = whether=20 the material at issue exceeded that which society generally considers = decent, or=20 at least tolerates.

Schauer, supra, =A7 5.2 at 103-04.

Masturbation is obviously a sexual act, and Harrold=3Ds portrayal of = it is=20 graphic and has no seeming purpose. However, the = clown=20 character Crotchy is not particularly excited or stimulated while = masturbating.=20 His rather bland, tedious, and brief portrayal of this act of = self-gratification=20 has an air of disinterest about it. It does manage to be weird; = however,=20 the videotape, taken as a whole, cannot be = described as=20 focusing predominantly upon what is sexually morbid, grossly perverse = and=20 bizarre, and insulting to the human spirit and sexuality. See = State ex=20 rel. Dowd v. Motion Picture +Pay the Baby Sitter, + 31 Ohio = Misc.=20 208, 287 N. E.2d 650 (1972).

Schauer states that the patent offensiveness standard is designed to = ask the=20 jury, +=3D[D]oes this material go too far?+=3D Schauer, supra, =A7 = 5.2 at 104.=20 Going +too far+ is a matter of whether the videotape exceeds the = customary=20 limits of candor in contemporary society. Without = engaging=20 in a lengthy discourse about what sexually explicit material is = available and=20 consumed in our late 1990=3Ds society, and avoiding commentary on the = role sex=20 plays in entertainment and advertising, we are constrained to hold that=20 Harrold=3Ds videotape, while candid, does not go too far in its = depiction of=20 masturbation. We find that exhibit 2, which was displayed to the = jury as=20 evidence of his alleged crime, is not obscene.

CONCLUSION

The district court misperceived its duty with respect to independent=20 appellate review of Harrold=3Ds videotape, and the county court made = prejudicial=20 errors concerning the evidence. However, we must still answer the = question of=20 whether exhibit 2, the videotape that both the State and Harrold agreed = was at=20 issue, is legally obscene. While the adjectives strange, weird, graphic, = unnecessary, distasteful, indecent, and offensive are all applicable to=20 Harrold=3Ds videotape, it is not legally obscene.

While we have written a fair amount here, we cannot help but see in = this case=20 the applicability of one of the most succinct and famous phrases ever = written in=20 an appellate opinion. Mr. Justice Stewart, in his=20 concurrence in Jacobellis v. Ohio, 378 U.S. 184,197, 84 S. Ct. = 1676, 12=20 L. Ed. 3d 793 (1964), said that the 1st and 14th Amendments to the = Constitution=20 allowed the criminal law to regulate only +hard-core+ pornography and = that he=20 would not attempt to define that term. Justice Stewart wondered if he = could even=20 succeed in intelligibly doing so. He then said the famous words: +But I = know it=20 when I see it.+ Id. Perhaps that helps sum up our opinion of = Harrold=3Ds=20 meaningless home movie: It is hard to define what the videotape says and = what it=20 means, if anything, but it is not hardcore pornography. Therefore, it is = protected by the 1st and 14th Amendments. The evidence is not sufficient = to=20 sustain the conviction.

REVERSED AND DISMISSED.

MILLER-LERMAN, Chief Judge, concurring in part, and in part = dissenting.

I respectfully concur in part and dissent in part.

I concur with the majority=3Ds conclusion that the exclusion of the = Cablevision=20 rules and regulations was prejudicial error requiring reversal. However, = I=20 dissent with respect to the majority=3Ds analysis of the independent = appellate=20 task which this court is to and can undertake in this case. = Specifically, as=20 presented on appeal, I do not think this court can review exhibit 1, the = work as=20 a whole and, therefore, cannot opine on whether the work as a whole is = or is not=20 obscene. I would, therefore, reverse without direction rather than = reverse and=20 dismiss.

It is clear under the literature pertaining to obscenity that at the = trial=20 level, the jury=3Ds determination of whether the challenged work is or = is not=20 obscene is a question of fact. Jenkins v. Georgia, 418 = U.S. 153,=20 94 S. Ct.2750, 41 L. Ed. 2d 642 (1974). The State and Harrold = stipulated, as=20 they are free to do as trial strategy, that the jury could perform its = function=20 by viewing exhibit 2, less than the whole.

It is also clear under the statute and cases that on appeal, the = appellate=20 court must review the entire work in conducting its independent = appellate=20 review. Section 28-813; Miller v. California, 413 U.S. 15, 93 S. = Ct.=20 2607, 37 L. Ed. 2d 419 (1973); Kois v. Wisconsin, 408 U.S. 229, = 92 S. Ct.=20 2245, 33 L. Ed. 2d 312 (1972). The duty of the appellate court is to = review the=20 work as a whole, and this issue is to be decided by the appellate court = as a=20 matter of law. State v. American Theater Corp., 194 Neb. = 84, 230=20 N.W.2d 209 (1975). The parties=3D trial stipulation regarding the = jury=3Ds=20 fact-finding function does not alter the duty or task of the appellate = court to=20 review the entire work which was produced, distributed, and forms the = basis of=20 the charges against Harrold and to decide the obscenity issue as a = matter of=20 law. In this regard, the Nebraska Supreme Court has stated:

[T]he usual test in reviewing a jury verdict, i.e., is the finding = supported=20 by sufficient evidence, is not applicable in First Amendment cases and = since it=20 is only +obscenity+ that is excluded from constitutional protection, the = question whether a particular work is obscene is an issue which must be = decided=20 by the court as a matter of law, in reviewing such cases.

(Emphasis supplied.) 194 Neb. at 89, 230 N.W.2d at 212-13.

In the instant case, exhibit 1, the whole work which gave rise to the = charges=20 against Harrold, was received in evidence. An independent appellate = review of=20 the entire work must be conducted by reviewing exhibit 1. However, = exhibit 1,=20 which is recorded on 3/4-inch pneumatic videotape, a size and grade = generally=20 used in professional broadcasting, is not readable by this court on = standard VHS=20 equipment, and the parties have failed to provide the appropriate = equipment for=20 playback as required under Neb. Ct. R. of Prac. 5B(7) (rev. 1996). This = court=20 is, thus, denied the performance of its duty and in my view should = refrain from=20 evaluating the work as a whole by reviewing exhibit 2, which is less = than the=20 whole work.

In sum, Harrold stands convicted of the production or distribution of = exhibit=20 1, the whole work. Our independent appellate function is to review the = work as a=20 whole and as a matter of law determine whether exhibit 1 is or is not = obscene.=20 Our independent appellate responsibility is dictated by the U.S. Supreme = Court,=20 the Nebraska Supreme Court, and statute, and not by a trial stipulation = between=20 the parties as to how the jury could perform its separate and distinct = function.=20 The inability of this court to review exhibit 1 due to the failure of = the=20 parties to supply appropriate equipment for playback precludes our = evaluation of=20 the work as a whole, and I believe our commenting on the obscenity of = the work=20 based on a review of a part of the work is not proper. I would, = therefore,=20 reverse without direction.

MUES, Judge, concurring.

From my personal viewpoint, Harrold=3Ds videotape was bizarre and = disgusting.=20 That it was indiscriminately offered to television viewers enhances its=20 offensiveness to me, but I am mindful that how it was distributed = does=20 not, as a matter of law, change the crime or make obscene that which is = legally=20 not obscene.

The first 14 1/2 minutes can best be described as unintelligible = garble. It=20 reminds me of a small child=3Ds making weird faces and sounds while = peering in a=20 mirror believing no one to be watching. Frankly, that anyone (with a = choice)=20 could sustain interest in the videotape long enough to get to the last = 90=20 seconds would amaze me. But I digress.

The last 90 seconds of this videotape shows a male clown = masturbating. Is=20 this obscenity? Viewed from a dictionary=3Ds definition of the term, it = may be,=20 although +absurd+ seems the more fitting description when viewing the = work as a=20 whole. However, it is arguably indecent, tawdry, and uncouth. = Nonetheless,=20 personal disgust and dictionary definitions are not the benchmarks of = our=20 standard of review, rather, we are bound by the First Amendment and the=20 definitions and standards promulgated by the U.S. Supreme Court, the = Nebraska=20 Supreme Court, and the Nebraska Legislature.

Applying those standards and definitions, Harrold=3Ds videotape is = not obscene.=20 I therefore concur in the result reached by Judge Sievers=3D = well-reasoned=20 opinion.

Look no further. You=3Dll find it at the +http://www.lawpublish.com/+ The following is = a sample=20 article from a past issue of Advertising Compliance Service=D4

SUBLIMINAL ADVERTISING AT ISSUE IN FEDERAL DISTRICT = COURT CASE=20

ACTUAL CASES ARE FEW AND FAR BETWEEN =

Actual cases involving so-called = +subliminal=20 advertising+ are, in actuality, few and far between. Nevertheless, one = recent=20 federal district court case did involve the allegation of subliminal=20 advertising. (Rickel v. Mountain Valley Television Corporation, et = al.,=20 No. C-96-1033 DLJ, United States District Court for the Northern = District of=20 California, 1996 U.S. Dist. LEXIS 19961, November 27, 1996.) Here=3Ds = what=20 happened--

Plaintiff=3Ds claims are based on allegations that in January of = 1995,=20 plaintiff submitted a videotape to MVTC which MVTC refused to broadcast. = After=20 this incident, on April 21, 1995, MVTC suspended plaintiff from further=20 broadcasting on Channel 3. MVTC claims that=20 its actions were based on its determination that the tape at issue = contained=20 subliminal advertising as well as false representations that plaintiff = was an=20 agent of MVTC, both of which violate MVTC policies. These=20 policies--including MVTC=3Ds general prohibition against commercial=20 advertising--are reflected in MVTC=3Ds Operating Policy and Procedures, = in a=20 Statement of Compliance signed by plaintiff, and in a Program Agreement = signed=20 by plaintiff. Plaintiff claimed MVTC told him that it refused to accept = further=20 submissions of videotaped programming from him since MVTC believed his broadcasts to be libelous.

22 F. Supp. 2d 1, *; 1998 U.S. Dist. LEXIS 15877, **; =
14=20 Comm. Reg. (P & F) 1177

DISPOSITION: [**1] Plaintiffs=3D motion for a = preliminary=20 injunction directing the defendant Cablevision to permit the airing on their public access = channel, only on a=20 first come first serve basis, of The Hippie Talk Show featuring = candidates of=20 the Marijuana Reform Party, granted.

A U.S. District = Court forced a=20 cable company to let +The Hippie Talk Show+ stay on the air so it could = promote=20 candidates of the Marijuana Reform Party.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiffs, producer and candidates, = filed a=20 motion for a preliminary injunction to compel defendant cable = provider to=20 permit the airing on a local public access channel of a segment of = the=20 producer=3Ds show that featured the candidates discussing election = issues.=20

OVERVIEW: Defendant claimed that it refused to air = plaintiffs=3D=20 segment due to its policy of excluding all qualified candidates = for public=20 office from broadcasting on the public access channel during the = 60-day=20 period preceding the election. The cable company said its policy excluded ALL political = candidates=20 from being on a public access channel less than 60 days before an=20 election. Plaintiffs claimed = that the=20 prohibition violated the Cable Communications Policy Act, 47 = U.S.C.S. =A7=20 531(e), and N.Y. Pub. Serv. Law =A7 229(3) because it = unlawfully=20 censored the content of the channel. The Hippies quoted the law, 47 United = States Code=20 Service, which says cable companies can=3Dt censor the content of = public=20 access shows. The court granted preliminary injunctive relief because = plaintiffs=20 established irreparable harm and a likelihood of success on the = merits.=20 The loss of opportunity for expression of political ideas just = prior to=20 the election constituted an imminent irreparable injury that could = not be=20 remedied by monetary damages. The court ordered the cable company to air the show = because +the=20 loss of opportunity for expression of political ideas just prior = to the=20 election+ is the wrong direction for the Freedom Train. The cable=20 company=3Ds +policy+ directly violated the U.S. = Code. Plaintiffs were not required to exhaust their administrative = remedies=20 because =A7 531(e) contained an implied private cause of action.=20 Additionally, defendant=3Ds policy conflicted with the plain = meaning of the=20 statute and amounted to exercising editorial control over public,=20 educational, or governmental use of the public access channel = because the=20 segment=3Ds content was noncommercial speech.=20

OUTCOME: The court ordered defendant to permit the airing = of=20 plaintiffs=3D show.

A public access channel is defined as a channel designated for=20 noncommercial use by the public on a first come, first served,=20 nondiscriminatory basis. 9 N.Y.C.R.R. =A7 595.4(a)(1). Public = access=20 channels are channels that over the years, local governments have = required=20 cable system operators to set aside for public, educational, or=20 governmental purposes as part of the consideration an operator = gives in=20 return for permission to install cables under the city streets and = to use=20 public rights-of-way.

To obtain preliminary injunctive relief, the movant must = clearly=20 establish the following: (a) irreparable harm; and (b) either (1)=20 likelihood of success on the merits or (2) sufficiently serious = questions=20 going to the merits to make them a fair ground for litigation and = the=20 balance of hardships tips in favor of the movant.=20

In showing irreparable harm in order to obtain preliminary = injunctive=20 relief, a moving party must show that the injury it will suffer is = likely=20 and imminent, not remote or speculative, and that such injury is = not=20 capable of being fully remedied by money damages.=20

If the court finds that the moving party would be irreparably = harmed if=20 injunctive relief were not granted, the second step of the inquiry = requires that the movant demonstrate a likelihood of success on = the=20 merits. This analysis, however, requires a heightened standard = where the=20 preliminary injunction grants the moving party essentially all the = relief=20 he seeks. In such a case, the moving party must show a substantial = likelihood of success on the merits, rather than merely a = likelihood of=20 success.

The Cable Communications Policy Act, 47 U.S.C.S. =A7 = 531(e),=20 states in part that a cable operator may not exercise any = editorial=20 control over any public, educational, or governmental use of = channel=20 capacity except a cable operator may refuse to transmit any public = access=20 program or portion of a public access program which contains = obscenity,=20 indecency, or nudity.

N.Y. Pub. Serv. Law =A7 229(3) states that no cable television = company=20 may prohibit or limit any program or class or type of program = presented=20 over a leased channel or any channel made available for public = access or=20 educational purposes.

An implied private cause of action in the federal court exists = against=20 a cable company provider that exercises editorial control over use = of its=20 public access channel in violation of Cable Communications Policy = Act,=20 47 U.S.C.S. =A7 531(e). =

It is the most basic rule of statutory interpretation that when = the=20 words of a statute are clear, they should be followed.=20

+http://uscode.house.gov/usc.htm+,=20 +http://uscode.house.gov/about.htm+,=20 +http://uscode.house.gov/download.htm+,=20 +http://uscode.house.gov/uscct.htm+,=20 +http://uscode.house.gov/cod.htm+ =

+javascript:getdoc(-1)++javascript:getdoc(-1)++../usc.htm++../usc.htm++javascript:getdoc(1) ++javascript:getdoc(1) +

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+http://uscode.house.gov/usc.htm+,=20 +http://uscode.house.gov/about.htm+,=20 +http://uscode.house.gov/download.htm+,=20 +http://uscode.house.gov/uscct.htm+,=20 +http://uscode.house.gov/cod.htm+ =

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Communications Media Center
at New York Law School=20 +../default.htm++../newsltr.htm++../index.htm++../bulleti= n.htm+

File Area: USCases

Denver Area Ed. Telecom. Consortium v. FCC=20

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS = CONSORTIUM, INC., ET=20 AL., PETITIONERS 95-124 v. FEDERAL COMMUNICATIONS COMMISSION ET AL.

JUSTICE BREYER, joined by JUSTICE STEVENS, JUSTICE = O=3DCONNOR,=20 and JUSTICE SOUTER, concluded in Parts I and II that @ 10(a) is = consistent=20 with the First Amendment. Pp. 6-23. (a) Close scrutiny demonstrates = that @=20 10(a) properly addresses a serious problem without imposing, in light = [*4]of the=20 relevant competing interests, an unnecessarily great restriction on = speech.=20 First, the section comes accompanied with the extremely important=20 child-protection justification that this Court has often found=20 compelling. See, e.g., Sable Communications of Cal., Inc. v. FCC, = 492 U.S.=20 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829. Second, @ 10(a) arises in a = very=20 particular context--congressional permission for cable operators to = regulate=20 programming that, but for a previous Act of Congress, would have had no = path of=20 access to cable channels free of an operator=3Ds control. The First = Amendment=20 interests involved are therefore complex, and require a balance between = those=20 interests served by the access requirements themselves (increasing the=20 availability of avenues of expression to programmers who otherwise would = not=20 have them), see H. R. Rep. No. 98-934, pp. 31-36 (1984), and the=20 disadvantage to the First Amendment interests of cable operators and = other=20 programmers (those to whom the operator would have assigned the channels = devoted=20 to access). See Turner Broadcasting System, Inc. v. FCC, 512 U.S. , . = Third, the=20 problem @ 10(a) addresses is analogous to the +indecent+ radio = broadcasts at=20 issue [*5]in FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d = 1073, 98 S.=20 Ct. 3026, and the balance Congress struck here is commensurate with the = balance=20 the Court approved in that case. Fourth, @ 10(a)=3Ds permissive nature = means that=20 it likely restricts speech less than, not more than, the ban at issue in = Pacifica. The importance of the interest at stake here--protecting = children=20 from exposure to patently offensive depictions of sex; the accommodation = of the=20 interests of programmers in maintaining access channels and of cable = operators=20 in editing the contents of their channels; the similarity of the problem = and its=20 solution to those at issue in Pacifica; and the flexibility inherent in = an=20 approach that permits private cable operators to make editorial = decisions,=20 persuasively establishes that @ 10(a) is a sufficiently tailored = response to an=20 extraordinarily important problem involving a complex balance of = interests.=20 Sable, supra, at 128, and Turner, supra, at , distinguished. Pp. = 6-18.(b)=20 Petitioners=3D = reliance on=20 this Court=3Ds +public forum+ cases is unavailing. It is unnecessary and = unwise to=20 decide whether or how to apply the public forum doctrine to leased = access=20 channels. First,[*6]it is not = clear=20 whether that doctrine should be imported wholesale into common carriage=20 regulation of = such a new=20 and changing area. Second,=20 although = limited public=20 forums are permissible, the Court has not yet determined whether the = decision to=20 limit a forum is necessarily subject to the highest level of scrutiny,=20 and these cases do not require = that it=20 do so now. Finally, and most important, the features that make @ 10(a) an acceptable = constraint=20 on speech also make it an acceptable limitation on access to the claimed = public=20 forum. Pp. 18-20. (c) Section = 10(a)=3Ds=20 definition of the materials it regulates is not impermissibly vague.=20 Because the language used = is similar=20 to that adopted in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d = 419, 93=20 S. Ct. 2607, as a +guideline+ for state obscenity laws, it would appear = to=20 narrow cable operators=3D program-screening authority to materials that = involve=20 the same kind of sexually explicit materials that would be obscene under = Miller,=20 but that might have +serious literary, artistic, political or scientific = value+=20 or nonprurient purposes, ibid. = That the=20 definition is not overly broad is further indicated by this Court=3Ds = construction=20 of the phrase +patently offensive,+ see Pacifica, supra, at 748, = 750,=20 which would narrow the category late at night when the audience is = basically=20 adult, and by the fact that @ 10(a) permits operators to screen programs = only=20 pursuant to a +written and published policy.+ The definition=3Ds = +reasonable=20 belief+ qualifier seems designed to provide a legal excuse for the = operator=3Ds=20 honest mistake, and it constrains the operator=3Ds discretion as much as = it=20 protects it. Pp. 20-23.

JUSTICE THOMAS, joined by THE CHIEF [*10]JUSTICE and = JUSTICE=20 SCALIA, agreed that @ 10(a) is constitutionally permissible. Cable = operators=20 are generally entitled to much the same First Amendment protection as = the print=20 media. Turner Broadcasting System, Inc. v. FCC, 512 U.S. , , . = Because Miami=20 Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. = Ct.=20 2831, and Pacific Gas & Elec. Co. v. Public Util. Comm=3Dn of Cal., = 475 U.S.=20 1, 89 L. Ed. 2d 1, 106 S. Ct. 903, are therefore applicable, see Turner, = supra,=20 at (O=3DCONNOR, J., concurring in part and dissenting in = part), the cable operator=3Ds = editorial rights=20 have general primacy under the First Amendment over the rights of = programmers to=20 transmit and of viewers to watch. None of the petitioners are cable = operators;=20 they are all cable viewers or access programmers or their representative = organizations. Because the cable access provisions are part of a scheme = that=20 restricts operators=3D free speech rights and expands the speaking = opportunities=20 of programmers who have no underlying constitutional right to speak = through the=20 cable medium, the programmers cannot challenge the scheme, or a = particular part=20 of it, as an abridgment of their +freedom of speech.+ Sections 10(a) and = (c)=20 merely restore [*11]part of the editorial discretion an operator would = have=20 absent Government regulation. Pp. = 1-15.

In 1992, in an effort to control sexually explicit = programming=20 conveyed over access channels, Congress enacted the three provisions = before us.=20 The first two provisions relate to leased channels. The first says: = +This=20 subsection shall permit a cable operator to enforce prospectively a = written and=20 published policy of prohibiting programming that the cable operator = reasonably=20 believes describes or depicts sexual or excretory activities or organs = in a=20 patently offensive manner as measured by contemporary community = standards.+ 1992=20 Act, @ 10(a)(2), 106 Stat. 1486.

The second [*16]provision applicable only to leased = channels=20 requires cable operators to segregate and to block similar programming = if they=20 decide to permit, rather than to prohibit, its broadcast. The provision = tells=20 the Federal Communications Commission (FCC or Commission) to promulgate=20 regulations that will (a) require +programmers to inform cable operators = if the=20 programming would be indecent as defined by Commission regulations+; (b) = require=20 +cable operators to place+ such material +on a single channel+; and (c) = require=20 +cable operators to block such single channel unless the subscriber = requests=20 access to such channel in writing.+ 1992 Act, @ 10(b)(1). The Commission = issued=20 regulations defining the material at issue in terms virtually identical = to those=20 we have already set forth, namely as descriptions or depictions of = +sexual or=20 excretory activities or organs in a patently offensive manner+ as = measured by=20 the cable viewing community. First Report and Order, PP33-38, 8 FCC Rcd = at=20 1003-1004. The regulations require the cable operators to place this = material on=20 a single channel and to block it (say, by scrambling). They also require = the=20 system operator to provide access to the blocked channel [*17]+within 30 = days+=20 of a subscriber=3Ds written request for access and to re-block it within = 30 days=20 of a subscriber=3Ds request to do so. 47 CFR @ 76.701(c) (1995). = The third provision is = similar to=20 the first provision, but applies only to public access channels. The = relevant=20 statutory section instructs the FCC to promulgate regulations that will = +enable=20 a cable operator of a cable system to prohibit the use, on such system, = of any=20 channel capacity of any public, educational, or governmental access = facility for=20 any programming which contains obscene material, sexually explicit = conduct, or=20 material soliciting or promoting unlawful conduct.+ 1992 Act, @ 10(c), ibid. The FCC, carrying out = this=20 statutory instruction, promulgated regulations defining +sexually = explicit+ in=20 language almost identical to that in the statute=3Ds leased channel = provision,=20 namely as descriptions or depictions of +sexual or excretory activities = or=20 organs in a patently offensive manner+ as measured by the cable viewing=20 community. See 47 CFR @ 76.702 (1995) (incorporating definition from 47 = CFR @=20 76.701(g)).

The upshot is, as we said at the beginning, that the = federal=20 law before us (the statute as [*18]implemented through regulations) now = permits=20 cable operators either to allow or to forbid the transmission of = +patently=20 offensive+ sex-related materials over both leased and public access = channels,=20 and requires those operators, at a minimum, to segregate and to block=20 transmission of that same material on leased channels.

Petitioners, claiming that the three statutory = provisions, as=20 implemented by the Commission regulations, violate the First Amendment, = sought=20 judicial review of the Commission=3Ds First Report and Order and its = Second Report=20 and Order in the United States Court of Appeals for the District of = Columbia=20 Circuit. A panel of that Circuit agreed with petitioners that the = provisions=20 violated the First Amendment. Alliance for Community Media v. FCC, 304 = U.S. App.=20 D.C. 37, 10 F.3d 812 (1993). The entire Court of Appeals, however, heard = the=20 case en banc and reached the opposite conclusion. It held all three = statutory=20 provisions (as implemented) were consistent with the First Amendment. = Alliance=20 for Community Media v. FCC, 56 F.3d 105 (1995). Four of the eleven en = banc=20 appeals court judges dissented. Two of the dissenting judges concluded = that all=20 three provisions violated the [*19]First Amendment. Two others thought = that=20 either one, or two, but not all three of the provisions, violated the = First=20 Amendment. We granted certiorari to review the en banc Court=3Ds First = Amendment=20 determinations.

II

We turn initially to the provision that permits cable = system=20 operators to prohibit +patently offensive+ (or +indecent+) programming=20 transmitted over leased = access=20 channels. 1992 Act, @ 10(a). The = Court of=20 Appeals held that this provision did not violate the First Amendment = because=20 the First Amendment prohibits only +Congress+ (and, through the = Fourteenth=20 Amendment, a +State+), not private individuals, from +abridging the = freedom of=20 speech.+ Although the court said that it found no +state action,+ 56 = F.3d at=20 113, it could not have meant that phrase literally, for, of course, = petitioners=20 attack (as +abridging . . . speech+) a congressional statute--which, by=20 definition, is an Act of +Congress.+ More likely, the court viewed = this=20 statute=3Ds +permissive+ provisions as not themselves restricting = speech, but,=20 rather, as simply reaffirming the authority to pick and choose = programming that=20 a private entity, say, a private broadcaster, would have had in the = absence of=20 intervention [*20]by any federal, or local, governmental entity. =

We recognize that the First Amendment, the terms of = which apply=20 to governmental action, ordinarily=20 does not itself throw into constitutional doubt the decisions of private = citizens to permit, or to restrict, speech--and this is so ordinarily = even where=20 those decisions take place within the framework of a regulatory regime = such as=20 broadcasting. Were that not so, courts might have to face the difficult, = and=20 potentially restrictive, practical task of deciding which, among any = number of=20 private parties involved in providing a program (for example, networks, = station=20 owners, program editors, and program producers), is the +speaker+ whose = rights=20 may not be abridged, and who is the speech-restricting +censor.+ = Furthermore, as this Court has held, the = editorial=20 function itself is an aspect of +speech,+ see Turner, 512 U.S. at (slip = op., at=20 11-12), and a court=3Ds decision that a private party, say, the station = owner, is=20 a +censor,+ could itself interfere with that private +censor=3Ds+ = freedom to speak=20 as an editor. Thus, not surprisingly, this Court=3Ds First Amendment = broadcasting=20 cases have dealt with governmental efforts to restrict, [*21] not = governmental=20 efforts to provide or to maintain, a broadcaster=3Ds freedom to pick and = to choose=20 programming. Columbia Broadcasting System, Inc. v. Democratic National=20 Committee, 412 U.S. 94, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973) = (striking=20 restrictions on broadcaster=3Ds ability to refuse to carry political = advertising);=20 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 = S. Ct.=20 1794 (1969) (upholding restrictions on editorial authority); FCC v. = League of=20 Women Voters of Cal., 468 U.S. 364, 82 L. Ed. 2d 278, 104 S. Ct. 3106 = (1984)=20 (striking restrictions); cf. Consolidated Edison Co. of N. Y. v. Public = Serv.=20 Comm=3Dn of N. Y., 447 U.S. 530, 65 L. Ed. 2d 319, 100 S. Ct. 2326 = (1980)=20 (striking ban on political speech by public utility using its billing = envelopes as a broadcast medium); Central Hudson Gas & Elec. = Corp. v.=20 Public Serv. Comm=3Dn of N. Y., 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. = Ct. 2343=20 (1980) (striking restriction on public utility advertising).

Nonetheless, petitioners, while conceding that this = is=20 ordinarily so, point to circumstances that, in their view, make the = analogy with=20 private broadcasters inapposite [sic: inappropriate?] and = make=20 this case a special one, warranting a different constitutional result. = As a=20 practical matter, they say, cable system operators have considerably = more power=20 to +censor+[*22]program viewing than do broadcasters, for individual = communities=20 typically have only one cable system, linking broadcasters and other = program=20 providers with each community=3Ds many subscribers. See Turner, supra, = at (slip=20 op., at 8) (only one cable system in most communities; nationally more = than 60%=20 of homes subscribe to cable, which then becomes the primary or sole = source of=20 video programming in the overwhelming majority of these homes). = Moreover,=20 concern about system operators=3D exercise of this considerable power = originally=20 led government--local and federal--to insist that operators provide = leased and=20 public access channels free of operator editorial control. H. R. Rep. = No.=20 98-934, at 30-31. To permit system operators to supervise programming on = leased=20 access channels will create the very private-censorship risk that this=20 anticensorship effort sought to avoid. At the same time, petitioners = add,=20 cable systems = have two=20 relevant special characteristics. They are unusually involved with = government,=20 for they depend upon government permission and government facilities = (streets,=20 rights-of-way) to string the cable necessary for their services. And in = respect=20 to leased channels,[*23]their speech interests are relatively weak = because they=20 act less like editors, such as newspapers or television broadcasters, = than like=20 common carriers, such as telephone companies.

Under these circumstances, petitioners conclude, = Congress=3D=20 +permissive+ law, in actuality, will +abridge+ their free speech. And = this Court=20 should treat that law as a congressionally imposed, content-based, = restriction=20 unredeemed as a properly tailored effort to serve a +compelling = interest.+

Perspective: these are perverts, who are raising these = arguments about=20 Mediacom=3Ds monopoly, which would be good arguments for escaping = Congress=3D=20 censorship were it something more uplifting than obscenity Congress is=20 censoring.

See Simon & Schuster, Inc. v. Members of N. Y. = State Crime=20 Victims Bd., 502 U.S. 105, 118, 116 L. Ed. 2d 476, 112 S. Ct. 501 = (1991); Sable=20 Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d = 93, 109 S.=20 Ct. 2829 (1989). They=20 further analogize the provisions to constitutionally forbidden = content-based=20 restrictions upon speech taking place in +public forums+ such as public = streets,=20 parks, or buildings dedicated to open speech and communication. =

Oh, so THAT=3Ds what +public forum+ means. Even = police can censor=20 public obscenity by arrest, and criminal charges. Or even obscenity on = TV.=20

See Cornelius v. NAACP Legal Defense & Ed. Fund, = Inc., 473=20 U.S. 788, 802, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985); Perry Ed. Assn. = v.=20 Perry Local Educators=3D Assn., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 = S. Ct. 948=20 (1983); see also H. R. Rep. No. 98-934, supra, at 30 (identifying public = access=20 channels as the electronic equivalent of a +speaker=3Ds soap [*24]box+). = And,=20 finally, petitioners say that the legal standard the law contains (the=20 +patently offensive+ standard) is unconstitutionally vague. See, = e.g.,=20 Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 20 L. Ed. 2d 225, 88 = S. Ct.=20 1298 (1968) (rejecting censorship ordinance as vague, even though it was = intended to protect children).

Notice=20 the +new and changing technology+ argument, which Mediacom gives for why = I don=3Dt=20 need the medium of TV to express myself since I can have a website, is = here=20 given as the reason to disregard Justice Thomas=3D view that cable = operators have=20 the First Amendment right, as private businessmen, to censor as much as = they=20 please -- even though Mediacom ALSO argues its hope that Thomas=3D = reasoning will=20 prevail when they reach the Court again. This decision says the reason = they=20 aren=3Dt ready to nail down whether cable is an +open forum+ is because = the=20 technology is changing.

The history of this Court=3Ds First Amendment = jurisprudence,=20 however, is one of continual development, as the Constitution=3Ds = general command=20 that +Congress shall make no law . . . abridging the freedom of = speech, or of=20 the press,+ has been applied to new circumstances requiring different=20 adaptations of prior principles and precedents. The essence of that = protection=20 is that Congress may not regulate speech except in cases of = extraordinary need=20 and with the exercise of a degree of care that we have not elsewhere=20 required.

Tough call, where there are competing First Amendment = rights in=20 both producers and operators.

See, e.g., Schenck v. United States, 249 U.S. 47, = 51-52, 63 L.=20 Ed. 470, 39 S. Ct. 247 (1919); Abrams v. United States, 250 U.S. 616, = 627-628,=20 63 L. Ed. 1173, 40 S. Ct. 17 (1919) (Holmes, J., dissenting); West = Virginia Bd.=20 of Ed. v. Barnette, 319 U.S. 624, 639, 87 L. Ed. 1628, 63 S. Ct. 1178 = (1943);=20 Texas v. Johnson, 491 U.S. 397, 418-420, 105 L. Ed. 2d 342, 109 S. Ct. = 2533=20 (1989). At the same time, our cases have not left Congress or the States = powerless to address the most serious problems. See, e.g., Chaplinsky v. = New=20 Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942); Young v. = American=20 Mini Theatres, Inc. 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 = [*26](1976);=20 FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. = 3026=20 (1978).

This tradition teaches that the First Amendment = embodies an=20 overarching commitment to protect speech from Government regulation = through=20 close judicial scrutiny, thereby enforcing the Constitution=3Ds = constraints, but=20 without imposing judicial formulae so rigid that they become a = straightjacket=20 that disables Government from responding to serious problems. This = Court, in=20 different contexts, has consistently held that the Government may = directly=20 regulate speech to address extraordinary problems, where its regulations = are=20 appropriately tailored to resolve those problems without imposing an=20 unnecessarily great restriction on speech. JUSTICES KENNEDY AND THOMAS would have us = further declare=20 which, among the many applications of the general approach that this = Court has=20 developed over the years, we are applying here. But no definitive choice = among=20 competing analogies (broadcast,[*28]common carrier, bookstore) allows us = to=20 declare a rigid single standard, good for now and for all future media = and=20 purposes. That is not to say that we reject all the more specific = formulations=20 of the standard--they appropriately cover the vast majority of cases = involving=20 Government regulation of speech. Rather, aware as we are of the changes = taking=20 place in the law, the technology, and the industrial structure, related = to=20 telecommunications, see, e.g., Telecommunications Act of 1996, 110 Stat. = 56; S.=20 Rep. No. 104-23 (1995); H. R. Rep. No. 104-204 (1995), we believe it = unwise and=20 unnecessary definitively to pick one analogy or one specific set of = words now.=20 See Columbia Broadcasting, 412 U.S. at 102 (+The problems of regulation = are=20 rendered more difficult because the broadcast industry is dynamic in = terms of=20 technological change; solutions adequate a decade ago are not = necessarily so=20 now, and those acceptable today may well be outmoded 10 years hence+);=20 Pacifica, supra, at 748 (+We have = long=20 recognized that each medium of expression presents special First = Amendment=20 problems.+) We therefore think it premature to answer the broad = questions that=20 JUSTICES KENNEDY AND [*29]THOMAS raise in their efforts to find a = definitive=20 analogy, deciding, for example, the extent to which private property = can be=20 designated a public forum, compare post, at 14-16 (KENNEDY, J., = concurring=20 in part and dissenting in part), with post, at 15-19 (THOMAS, J., = dissenting in=20 part and concurring in judgment); whether public access channels are a = public=20 forum, post, at 12-13 (KENNEDY J.); whether the Government=3Ds viewpoint = neutral=20 decision to limit a public forum is subject to the same scrutiny as a = selective=20 exclusion from a pre-existing public forum, post, at 20-25 (KENNEDY, = J.);=20 whether exclusion from common carriage must for all purposes be treated = like=20 exclusion from a public forum, post, at 18-19 (KENNEDY, J.); and = whether the=20 interests of the owners of communications media always subordinate the = interests=20 of all other users of a medium, post, at 6-7 (THOMAS, J.).

Rather than decide these issues, we can decide this = case more=20 narrowly, by closely scrutinizing @ 10(a) to assure that it properly = addresses=20 an extremely important problem, without imposing, in light of the = relevant=20 interests, an unnecessarily great restriction on speech. The importance [*30]of the = interest at=20 stake here--protecting children from exposure to patently offensive = depictions=20 of sex; the accommodation of = the=20 interests of programmers in maintaining access channels and of cable = operators=20 in editing the contents of their channels; the similarity of the problem = and its=20 solution to those at issue in Pacifica, supra; and the flexibility = inherent in=20 an approach that permits private cable operators to make editorial = decisions,=20 lead us to conclude that @ 10(a) is a sufficiently tailored response to = an=20 extraordinarily important problem.

Second, the provision arises in a very particular = context--congressional=20 permission for cable operators to regulate programming that, but for a = previous=20 Act of Congress, would have had no path of access to cable channels free = of an=20 [*31]operator=3Ds control. The First Amendment interests involved are = therefore=20 complex, and involve a balance between those interests served by the = access=20 requirements themselves (increasing the availability of avenues of = expression to=20 programmers who otherwise would not have them), H. R. Rep. No. 98-934, = pp. 31-36=20 (1984), and the disadvantage to the First Amendment interests of cable = operators=20 and other programmers (those to whom the cable operator would have = assigned the=20 channels devoted to access). See Turner,=20 512 U.S. at (slip op., at 11-12).

Fourth, the permissive nature of @ 10(a) means that = it likely=20 restricts speech less than, not more than, the ban at issue in Pacifica. = The=20 provision removes a restriction as to some speakers--namely, cable = operators.=20 See supra, at 13. Moreover, although the provision does create a risk that a = program will=20 not appear, that risk is not the same as the certainty that accompanies = a=20 governmental ban. In fact, a glance at the programming that cable = operators=20 [*35]allow on their own (nonaccess) channels suggests that this = distinction is=20 not theoretical, but real. See App. 393 (regular channel broadcast of = Playboy=20 and +Real Sex+ programming). Finally, the=20 provision=3Ds permissive nature brings with it a flexibility that allows = cable=20 operators, for example, not to ban broadcasts, but, say, to rearrange = broadcast=20 times, better to fit the desires of adult audiences while lessening the = risks of=20 harm to children. See First Report and Order P31, 8 FCC Rcd at 1003=20 (interpreting the Act=3Ds provisions to allow cable operators broad = discretion=20 over what to do with offensive materials). In all these respects, the = permissive=20 nature of the approach taken by Congress renders this measure = appropriate as a=20 means of achieving the underlying purpose of protecting children.

the reason we don=3Dt have to decide whether public = access is a=20 +public forum+, in other words, is that it wouldn=3Dt make a lick of = difference.=20 Once we decide obscenity isn=3Dt protected by the First Amendment, = it=3Ds only words=20 whether we say our restriction +limits access to a public forum+, or = +limits use=20 of a common carrier+ (such as a telephone company, which has NO input = into the=20 content carried over its lines), or +constrains speech because of its = content+.=20 We have the right to restrict obscenity under any name.

Consequently, if one wishes to view the permissive = provisions=20 before us through a +public forum+ lens, one should view those = provisions as=20 limiting the otherwise totally open nature of the forum that leased = access=20 channels provide for communication of other than patently offensive = sexual=20 material--taking account of the fact that the limitation was imposed in = light of=20 experience gained from maintaining a totally open +forum.+ One must = still ask=20 whether the First Amendment forbids the limitation. But unless a label alone were = to make a=20 critical First Amendment difference [*43](and we think here it does = not),=20 the features of this case that we = have=20 already discussed--the government=3Ds interest in protecting children, = the=20 +permissive+ aspect of the statute, and the nature of the = medium--sufficiently=20 justify the +limitation+ on the availability of this forum.

The statute=3Ds third provision, as implemented by = FCC=20 regulation, is similar to its first provision, in that it too permits a cable = [*60]operator to=20 prevent transmission of +patently offensive+ programming, in this case on public access channels. = 1992 Act, @=20 10(c); 47 CFR @ 76.702 (1995). But there are four important differences. =

CONCUR: JUSTICE STEVENS, concurring.

The difference between @ 10(a) and @ 10(c) is the = difference=20 between a permit and a prohibition. The former restores the freedom of = cable=20 operators to reject indecent programs; the latter requires local = franchising=20 authorities to reject such programs. While I join the Court=3Ds opinion, = I add=20 these comments to emphasize the difference between the two provisions = and to=20 endorse the analysis in Part III-B of JUSTICE KENNEDY=3Ds opinion = even though I=20 do not think it necessary to characterize the public access channels as = public=20 fora. Like JUSTICE SOUTER, I am convinced that it would be unwise = to take=20 a categorical approach to the resolution of novel First Amendment = questions=20 arising in an industry as dynamic as this. Cf. R. A. V. v. St. Paul, = 505=20 U.S. 377, 426-427, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992) (STEVENS, = J.,=20 concurring in judgment).

I

Federal law requires cable system operators to = reserve about=20 15 percent of their channels for commercial lease to unaffiliated = programmers.=20 See 47 U.S.C. @ 532(b). On these channels, federal [*74]law = generally=20 prohibits the cable operator from exercising any control over program = content,=20 see 47 U.S.C. 532(c)(2), with one exception: Section 10(a) allows the = operator=20 to refuse to air +indecent+ programs. In my view, that exception is=20 permissible.

The Federal Government established the leased access=20 requirements to ensure that certain programmers would have more channels = available to them. Section 10(a) is therefore best understood as a = limitation on=20 the amount of speech that the Federal Government has spared from the = censorial=20 control of the cable operator, rather than a direct prohibition against = the=20 communication of speech that, in the absence of federal intervention, = would flow=20 freely.

[Or, +Section 10(a) limits how much speech is = protected from=20 cable company censorship, rather than directly limiting speech which = would be=20 wide open without federal intervention.]

I do not agree, however, that @ 10(a) established a = public=20 forum. Unlike sidewalks and parks, the Federal Government created = leased=20 access channels in the course of its legitimate regulation of the = communications=20 industry. In so doing, it did not establish an entirely open forum, but = rather=20 restricted access to certain speakers, namely unaffiliated programmers = able to=20 lease the air time. By facilitating certain speech that cable = operators=20 would not otherwise carry, the leased access channels [*75]operate like = the=20 must-carry rules that we considered in Turner Broadcasting System,. Inc. = v. FCC,=20 512 U.S. , (1994) (slip op., at 19-21), without reference to our public = forum=20 precedents.

When the Federal Government opens cable channels = that would=20 otherwise be left entirely in private hands, it deserves more deference = than a=20 rigid application of the public forum doctrine would allow. At this = early stage=20 in the regulation of this developing industry, Congress should not be = put to an=20 all or nothing-at-all choice in deciding whether to open certain cable = channels=20 to programmers who would otherwise lack the resources to participate in = the=20 marketplace of ideas.

Just as Congress may legitimately limit access to = these=20 channels to unaffiliated programmers, I believe it may also limit, = within=20 certain reasonable bounds, the extent of the access that it confers upon = those=20 programmers. n1 = If the=20 Government had a reasonable basis for concluding that there were already = enough=20 classical musical programs or cartoons being telecast--or, perhaps, even = enough=20 political debate--I would find no First Amendment objection to an open = access=20 requirement that was extended on an impartial basis [*76]to all but = those=20 particular subjects. A contrary conclusion would ill-serve First = Amendment=20 values by dissuading the Government from creating access rights=20 altogether. n2 - - - - - - - - = - - - - -=20 - - - - -Footnotes- - - - - - - - - - - - - - - - - -

JUSTICE SOUTER,=20 concurring.

JUSTICE KENNEDY=3Ds separate opinion stresses the = worthy point=20 that First Amendment values generally are well-served by categorizing = speech=20 protection according to the respective characters of the expression, its = context, and the restriction at issue. Reviewing speech regulations = under fairly=20 strict categorical rules keeps the starch in the standards for those = moments=20 when the daily politics cries loudest for limiting what may be said. n1 = JUSTICE=20 KENNEDY sees no warrant in this case for anything but a categorical and=20 rule-based approach applying a fixed level of scrutiny, the strictest, = to judge=20 the content-based provisions of @@ 10(a), (b), and (c), and he = accordingly=20 faults the plurality opinion for declining [*84]to decide the precise = doctrinal=20 categories that should govern the issue at hand. The value of the = categorical=20 approach generally to First Amendment security prompts a word to explain = why I=20 join the Court=3Ds unwillingness to announce a definitive categorical = analysis in=20 this case. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - = - - - -=20 - - - - - - -

DISSENT: JUSTICE O=3DCONNOR, concurring in part and = dissenting in=20 part.

I agree that @ 10(a) is constitutional and that @ = 10(b) is=20 unconstitutional, and I join Parts I, II, III, and V, and the judgment = in part.=20 I am not persuaded, however, that the asserted [*92]+important = differences+=20 between @@ 10(a) and 10(c), ante, at 30, are sufficient to justify = striking down=20 @ 10(c). I find the features shared by @ 10(a), which covers leased = access=20 channels, and @ 10(c), which covers public access channels, to be more=20 significant than the differences. For that reason, I would find that @ = 10(c) too=20 withstands constitutional scrutiny.

Huh? 531(e) already permits censorship of indecency; = didn=3Dt the=20 law here add the more vague +patently offensive+ speech? Question: was = the FCC=20 rule so vague, so easy to take a phrase out of context, that +patently=20 offensive+ could be interpreted as unrelated to sexual matter? So that a = Christian Scripture might be censored because it is +patently offensive+ = to a=20 Moslem, or whatever?

Nor is the fact that public access programming may be = subject=20 to supervisory systems in addition to the cable operator, see ante, at = 31-33,=20 sufficient in my mind to render @ 10(c) so ill-tailored to its goal as = to be=20 unconstitutional. Given the compelling interest served by @ 10(c), its=20 permissive nature, and fit within our precedent, I would hold @ 10(c), = like @=20 10(a), constitutional.

JUSTICE KENNEDY,=20 with whom JUSTICE GINSBURG joins, concurring in part, concurring in the = judgment=20 in part, and dissenting in part.

The plurality opinion, insofar as it upholds @ = 10(a)[*95]of the=20 1992 Cable Act, is adrift. The opinion treats concepts such as public = forum,=20 broadcaster, and common carrier as mere labels rather than as categories = with=20 settled legal significance; it applies no standard, and by this omission = loses=20 sight of existing First Amendment doctrine. When confronted with a = threat to=20 free speech in the context of an emerging technology, we ought to have = the=20 discipline to analyze the case by reference to existing elaborations of = constant=20 First Amendment principles. This is the essence of the case-by-case = approach to=20 ensuring protection of speech under the First Amendment, even in novel = settings.=20 Rather than undertake this task, however, the plurality just = declares that,=20 all things considered, @ 10(a) seems fine. I think the implications of = our past=20 cases for this one are clearer than the plurality suggests, and they = require us=20 to hold @ 10(a) invalid. Though I join Part III of the opinion (there = for the=20 Court) striking down @ 10(b) of the Act, and concur in the judgment that = @ 10(c)=20 is unconstitutional, with respect I dissent from the remainder.

I respectfully wonder of Justice Kennedy is confusing = the issue=20 of protecting children from smut, with the right of a private property = owner=20 from keeping people he doesn=3Dt like off his property. He rebels = against treating=20 cable companies as if they were private property owners, but that = isn=3Dt how the=20 law treats them. The law treats them like gatekeepers of what they allow = onto=20 OTHER people=3Ds property. If he thinks there is a way to +draw+ +the = provisions+=20 of the law +with enough care to withstand scrutiny+ by him, I wish he = had given=20 an example of how the law might have been drawn more = carefully.

II

Before engaging the complexities of cable access = channels and=20 explaining my reasons for thinking all of @ 10 unconstitutional, I start = with=20 the most disturbing aspect of the plurality opinion: its evasion of any = clear=20 legal standard in deciding this case. See ante, at 11 (disavowing need = to=20 +declare which, among the many applications of the general approach that = this=20 Court has developed over the years, we are applying here+).

The plurality begins its flight from standards with a = number of=20 assertions nobody disputes. I agree, of course, that it would be unwise = +to=20 declare a rigid single standard, good for now and for all future media = and=20 purposes,+ ante, at 11. I do think it necessary, however, to decide what = standard applies to discrimination against indecent programming on cable = access=20 channels in the present state of the industry. We owe at least that much = to=20 public and leased access programmers whose speech is put at risk = nationwide by=20 these laws.

In a similar vein, we are admonished this case is=20 complicated, not simple; the importance of contextual review, we are = told,=20 cannot be evaded by recourse to simple analogies. Ante, at 9-13, 18. All = this is=20 true, but [*101]use of a standard does not foreclose consideration of = context.=20 Indeed, if strict scrutiny is an instance of +judicial formulae so = rigid=20 that they become a straitjacket that disables Government from responding = to=20 serious problems,+ ante, at 11, this is a grave indictment of our First=20 Amendment jurisprudence, which relies on strict scrutiny in a number of = settings=20 where context is important. I have expressed misgivings about judicial = balancing=20 under the First Amendment, see Burson v. Freeman, 504 U.S. 191, 211-212, = 119 L.=20 Ed. 2d 5, 112 S. Ct. 1846 (1992) (concurring opinion); Simon & = Schuster,=20 Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 124-125, = 116 L.=20 Ed. 2d 476, 112 S. Ct. 501 (1991) (opinion concurring in judgment), but = strict=20 scrutiny at least confines the balancing process in a manner protective = of=20 speech; it does not disable government from addressing serious problems, = but=20 does ensure that the solutions do not sacrifice speech to a greater = extent than=20 necessary.

The plurality claims its resistance to standards = is in=20 keeping with our case law, where we have shown a willingness to be = flexible in=20 confronting novel First Amendment problems. The cases it cites, ante, at = 10-11,=20 however, demonstrate the opposite [*102]of what the plurality supposes: = in each,=20 we developed specialized or more or less stringent standards when = certain=20 contexts demanded them; we did not avoid the use of standards = altogether.=20 Indeed, the creation of standards and adherence to them, even when = it means=20 affording protection to speech unpopular or distasteful, is the central=20 achievement of our First Amendment jurisprudence. Standards are the = means by=20 which we state in advance how to test a law=3Ds validity, rather than = letting the=20 height of the bar be determined by the apparent exigencies of the day. = They=20 also provide notice and fair warning to those who must predict how the = courts=20 will respond to attempts to suppress their speech. Yet formulations = like=20 strict scrutiny, used in a number of constitutional settings to ensure = that the=20 inequities of the moment are subordinated to commitments made for the = long run,=20 see Simon & Schuster, supra, at 115-116; Perry Ed. Assn. v. = Perry Local=20 Educators=3D Assn., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 = (1983),=20 mean little if they can be watered down whenever they seem too = strong.=20 They mean still less if they can be ignored altogether when considering = a case=20 not on all fours with what we have seen before.[*103]

The plurality seems distracted by the many changes = in=20 technology and competition in the cable industry. See ante, at = 11-12; ante,=20 at 3-4 (SOUTER, J., concurring). The laws challenged here, however, = do not=20 retool the structure of the cable industry or (with the exception of = @=20 10(b)) involve intricate technologies. The straightforward issue here = is=20 whether the Government can deprive certain speakers, on the basis of the = content=20 of their speech, of protections afforded all others. There is no reason = to=20 discard our existing First Amendment jurisprudence in answering this=20 question.

While it protests against standards, the plurality = does seem to=20 favor one formulation of the question in this case: namely, whether = the Act=20 +properly addresses an extremely important problem, without imposing, in = light=20 of the relevant interests, an unnecessarily great restriction on = speech.+ Ante,=20 at 12. (Though the plurality frowns on any effort to settle on a form of = words,=20 it likes this formulation well enough to repeat it; see ante, at 11). = This=20 description of the question accomplishes little, save to clutter our = First=20 Amendment case law by adding an untested rule with an uncertain = relationship=20 [*104]to the others we use to evaluate laws restricting speech. The = plurality=20 cannot bring itself to apply strict scrutiny, yet realizes it cannot = decide the=20 case without uttering some sort of standard; so it has settled for = synonyms.=20 +Close judicial scrutiny,+ ante, at 11, 12, is substituted for strict = scrutiny,=20 and +extremely important problem,+ ante, at 12, or +extraordinary = problem,+=20 ante, at 11, is substituted for +compelling interest.+ The = admonition that=20 the restriction not be unnecessarily great in light of the interest it = serves,=20 ante, at 12, is substituted for the usual narrow tailoring requirements. = All we=20 know about the substitutes is that they are inferior to their = antecedents. We=20 are told the Act must be +appropriately tailored,+ ante, at 11, = +sufficiently=20 tailored,+ ante, at 12, or +carefully and appropriately addressed,+ = ante, at 18,=20 to the problems at hand--anything, evidently, except narrowly tailored. =

These restatements have unfortunate consequences. The = first is=20 to make principles intended to protect speech easy to manipulate. The = words=20 end up being a legalistic cover for an ad hoc balancing of interests; = in=20 this respect the plurality succeeds [*105]after all in avoiding the use = of a=20 standard. Second, the plurality=3Ds exercise in pushing around = synonyms for the=20 words of our usual standards will sow confusion in the courts bound by = our=20 precedents. Those courts, and lawyers in the communications field, now = will have=20 to discern what difference there is between the formulation the = plurality=20 applies today and our usual strict scrutiny. I can offer little = guidance,=20 except to note the unprotective outcome the plurality reaches here. This = is why=20 comparisons and analogies to other areas of our First Amendment case law = become=20 a responsibility, rather than the luxury the plurality considers them to = be. The=20 comparisons provide discipline to the Court and guidance for others, and = give=20 clear content to our standards--all the things I find missing in the = plurality=3Ds=20 opinion. The novelty and complexity of the case is a reason to look for = help=20 from other areas of our First Amendment jurisprudence, not a license to = wander=20 into uncharted areas of the law with no compass other than our own = opinions=20 about good policy.

Good points. I don=3Dt remember what +strict = scrutiny+ means, but=20 if it means it=3Ds wrong to allow cable companies to censor smut if it = wants to, I=20 don=3Dt think we need it. I appreciate this analysis of synonyms, and I = see the=20 hazards; like a modern Bible translation that means sort of the same = thing, but=20 we lose our memory of the literal meanings. Precedents are not like = Scripture,=20 however much Courts are tempted to treat them that way. They are always = worth=20 studying because they contain nuggets of wisdom. But they aren=3Dt = always right.=20 Frankly, pornography case law has been a disaster for years. It has made = prosecution unreasonably difficult, and emaciated the soul of America. = If the=20 court now has the heart to walk away from certain disastrous precedents = by just=20 sort of forgetting them, and by just starting using a new language that = permits=20 more reasonable results, that is good.

Another troubling aspect of the plurality=3Ds = approach is its=20 suggestion that Congress has more leeway than usual to enact = restrictions=20 [*106]on speech where emerging technologies are concerned, because we = are unsure=20 what standard should be used to assess them. JUSTICE SOUTER recommends = to the=20 Court the precept +=3DFirst, do no harm,=3D+ ante, at 6. The question, = though, is=20 whether the harm is in sustaining the law or striking it down. If the = plurality=20 is concerned about technology=3Ds direction, it ought to begin by = allowing speech,=20 not suppressing it. We have before us an urgent claim for relief against = content-based discrimination, not a dry run.

No, the correct analogy is the government=3Ds = creation of a band=20 shell in which all types of music might be performed except for dynamite = blasts.=20 Obscenity is not protected speech. It doesn=3Dt fall in the same = category. Rap=20 music may come close to dynamite blasts, but obscenity does not come = close to=20 speech.

Giving government free rein to exclude speech it = dislikes by=20 delimiting public forums [*132](or common carriage provisions) would = have=20 pernicious effects in the modern age. Minds are not changed in = streets and=20 parks as they once were. To an increasing degree, the more = significant=20 interchanges of ideas and shaping of public consciousness occur in mass = and=20 electronic media. Cf. United States v. Kokinda, 497 U.S. 720, 737, 111 = L. Ed. 2d=20 571, 110 S. Ct. 3115 (1990) (KENNEDY, J., concurring in judgment). The = extent of=20 public entitlement to participate in those means of communication may be = changed=20 as technologies change; and in expanding those entitlements the = Government has=20 no greater right to discriminate on suspect grounds than it does when it = effects=20 a ban on speech against the backdrop of the entitlements to which we = have been=20 more accustomed. It contravenes the First Amendment to give Government a = general=20 license to single out some categories of speech for lesser protection so = long as=20 it stops short of viewpoint discrimination.

This is like saying stopping speeders is = unconstitutional=20 because some police might not stop them as much as others. This law = makes cable=20 companies the police of indecency. There must be discretion, since = courts=20 haven=3Dt come up with any objective way to measure it. Congress says = +may=20 restrict+ because if it said +must restrict+ then cable companies would = become=20 liable for not enforcing this standard which no court has made=20 clear.

Second, to the extent cable operators prohibit = indecent=20 programming on access channels, not only children but adults will be = deprived of=20 it. The Government may not +reduce the adult population . . . to = [viewing] only=20 what is fit for children.+ Butler v. Michigan, 352 U.S. 380, 383, 1 L. = Ed. 2d=20 412, 77 S. Ct. 524 (1957). It matters not that indecent programming = might be=20 available on the operator=3Ds other channels. The Government has no = legitimate=20 interest in making access channels pristine. A block-and-segregate = requirement=20 similar to @ 10(b), but without its constitutional infirmity of = requiring=20 persons to place themselves on a list to receive programming, see ante, = at=20 26-27, protects children with far less intrusion on the liberties of = programmers=20 and adult viewers than allowing cable operators to ban indecent = programming from=20 access channels altogether. When applying strict scrutiny, we will = [*140]not=20 assume plausible alternatives will fail to protect compelling interests; = there=20 must be some basis in the record, in legislative findings or otherwise,=20 establishing the law enacted as the least restrictive means. Sable=20 Communications, supra, at 128-130. Cf. Turner Broadcasting, 512 U.S. at = - (slip=20 op., at 40-45). There is none here.

JUSTICE THOMAS,=20 joined by the CHIEF JUSTICE and JUSTICE SCALIA, concurring in the = judgment in=20 part and dissenting in part.

I agree with the plurality=3Ds conclusion that @ = 10(a) is=20 constitutionally permissible, but I disagree with its conclusion that @@ = 10(b)=20 and (c) violate the First Amendment. For many years, we have failed to=20 articulate how and to what extent the First Amendment protects cable = operators,=20 programmers, and viewers from state and federal regulation. I think it = is time=20 we did so, and I cannot go along with the plurality=3Ds assiduous = attempts to=20 avoid addressing that issue openly.

The difference between Mediacom and the Dsm Register = is that=20 Mediacom has a franchise obligation with the city, in return for rights = of way;=20 and it has a government protected monopoly.

Two Terms ago, in Turner Broadcasting System, Inc. v. = FCC, 512=20 U.S. (1994), we stated expressly what we had implied in Leathers: The = Red Lion=20 standard does not apply to cable television. 512 U.S. at (slip op., at = 12)=20 (+The rationale for applying a less rigorous standard of First = Amendment=20 scrutiny to broadcast regulation . . . does [*153]not apply in the = context of=20 cable regulation+); id., at (slip op., at 14) (+Application of the = more=20 relaxed standard of scrutiny adopted in Red Lion and the other broadcast = cases=20 is inapt when determining the First Amendment validity of cable = regulation+).=20 While Members of the Court disagreed about whether the must-carry rules = imposed=20 by Congress were content-based, and therefore subject to strict = scrutiny, there=20 was agreement that cable operators are generally entitled to much the = same First=20 Amendment protection as the print media. But see id., at (slip op., at = 1)=20 (STEVENS, J., concurring in part and concurring in judgment) (+Cable = operators=3D=20 control of essential facilities provides a basis for intrusive = regulation that=20 would be inappropriate and perhaps impermissible for other communicative = media+).

How does +cable operators=3D control of essential = facilities+=20 distinguish it from +other communicative media+? And WHY would cable = operators=20 have the same first amendment protection as the print media when print = media=20 enjoys no physically protected monopoly and does not disturb every = single right=20 of way in the city? I hope he explains.

In Turner, by adopting much of the print paradigm, = and by=20 rejecting Red Lion, we adopted with it a considerable body of precedent = that=20 governs the respective First Amendment rights of competing speakers. In = Red=20 Lion, we had legitimized consideration of the public interest and = emphasized the=20 rights of viewers, at least in the abstract. Under that view, +it = [*154]is the=20 right of the viewers and listeners, not the right of the broadcasters, = which is=20 paramount.+ 395 U.S. at 390. After Turner, however, that view can no = longer be=20 given any credence in the cable context. It is the operator=3Ds right = that is=20 preeminent. If Tornillo and Pacific Gas & Electric Co. v. Public = Utilities=20 Comm=3Dn of Cal., 475 U.S. 1, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986), are = applicable, and I think they are, see Turner, supra, at (slip op., at = 8-9)=20 (O=3DCONNOR, J., concurring in part and dissenting in part), then, when = there is a=20 conflict, a programmer=3Ds asserted right to transmit over an = operator=3Ds cable=20 system must give way to the operator=3Ds editorial discretion. Drawing = an analogy=20 to the print media, for example, the author of a book is protected in = writing=20 the book, but has no right to have the book sold in a particular book = store=20 without the store owner=3Ds consent. Nor can government force the editor = of a=20 collection of essays to print other essays on the same subject.=20

He is not explaining yet. He is citing his summaries = of what=20 other cases have ruled, without explaining what principles in them make = them=20 relevant here. It is like imposing the letter of the law without = discerning the=20 spirit of the law. Not that I have read a very large number of cases, = but this=20 much reliance on the letter of previous rulings without mention of their = principles, seems atypical of judicial writing. This style of writing = has hope=20 of making sense only to those who have read every case he cites. Most = other=20 writing makes sense even to me, because even though I have not read the = cases, I=20 can follow the principles explained, and form a judgment whether they = are=20 sensibly applied.

The Court in Turner found that the FCC=3Ds must-carry = rules=20 implicated the First Amendment rights of both cable operators and cable=20 programmers. The rules interfered with the operators=3D editorial = discretion=20 [*155]by forcing them to carry broadcast programming that they might not = otherwise carry, and they interfered with the programmers=3D ability to = compete=20 for space on the operators=3D channels. Id., at (slip op., at 19-20); = id., at=20 (slip op., at 1-2) (O=3DCONNOR, J., concurring in part and dissenting in = part).=20 We implicitly recognized in Turner that the programmer=3Ds right to = compete for=20 channel space is derivative of, and subordinate to, the operator=3Ds = editorial=20 discretion. Like a free-lance writer seeking a paper in which to publish = newspaper editorials, a programmer is protected in searching for an = outlet for=20 cable programming, but has no free-standing First Amendment right to = have that=20 programming transmitted. Cf. Miami Herald Publishing Co. v. = Tornillo, 418=20 U.S. at 256-258. Likewise, the rights of would-be viewers are derivative = of the=20 speech rights of operators and programmers. Cf. Virginia Bd. of Pharmacy = v.=20 Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757, 48 L. = Ed. 2d=20 346, 96 S. Ct. 1817 (1976) (+Freedom of speech presupposes a willing = speaker.=20 But where a speaker exists, . . . the protection afforded is to the=20 communication, to its source and to its recipients both+).[*156]Viewers = have a=20 general right to see what a willing operator transmits, but, under = Tornillo and=20 Pacific Gas, they certainly have no right to force an unwilling operator = to=20 speak.

In the case of a free lance writer, there are more = willing=20 writers than physical space available, so of course a newspaper editor = MUST pick=20 and choose according to his personal view of quality. If someone like me = doesn=3Dt=20 agree with his notion of quality, he can try to get subscribers to his = own=20 newspaper, as I have done. Likewise as PA producers fill up the 15% = maximum=20 required channel capacity, perhaps cable companies will acquire rights = to pick=20 and choose by additional criteria besides +first come first served+. But = in Des=20 Moines where there is so much extra channel capacity that each producer = gets two=20 airings, (which we all deeply appreciate), none of these arguments = apply. The=20 Turner concerns don=3Dt apply. Well, it may be companies are forced to = carry more=20 programs, but there is no problem with producers competing = unsuccessfully for=20 time.

By recognizing the general primacy of the cable = operator=3Ds=20 editorial rights over the rights of programmers and viewers, Turner = raises=20 serious questions about the merits of petitioners=3D claims. None of the = petitioners in these cases are cable operators; they are all cable = viewers or=20 access programmers or their representative organizations. See Brief for=20 Petitioners in No. 95-124, pp. 5-6; Brief for Petitioners New York = Citizens=20 Committee for Responsible Media et al., in No. 95-227, p. 3; Brief for=20 Petitioners Alliance for Community Media et al., in No. 95-227, p. 3. It = is not=20 intuitively obvious that the First Amendment protects the interests = petitioners=20 assert, and neither petitioners nor the plurality have adequately = explained the=20 source or justification of those asserted rights.

+Not intuitively obvious+ departs from established = legal=20 principles to common sense. In the present discussion, where perverts = are=20 wanting more obscenity than the FCC wants to allow, of COURSE it is +not = intuitively obvious+ that they should get it. That doesn=3Dt mean that = were=20 petitioners wanting political or religious speech, that it would fail to = be=20 +intuitively obvious+ that they should have it.

JUSTICE BREYER=3Ds detailed explanation of why he = believes it is=20 +unwise and unnecessary,+ ante, at 11, to choose a standard against = which to=20 measure petitioners=3D First Amendment claims largely disregards our = recent [*157]=20 attempt in Turner to define that standard. n3 His attempt to distinguish = Turner=20 on the ground that it did not involve +the effects of television viewing = on=20 children,+ ante, at 18, is meaningless because that factual distinction = has no=20 bearing on the existence and ordering of the free speech rights asserted = in=20 these cases. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - = - - - -=20 - - - - - -

n3 Curiously, the plurality relies on +changes = taking place=20 in the law, the technology, and the industrial structure, relating to=20 telecommunications,+ ante, at 11, to justify its avoidance of = traditional First=20 Amendment standards. If anything, as the plurality recognizes, ante, at = 15,=20 those recent developments--which include the growth of satellite = broadcast=20 programming and the coming influx of video dialtone services--suggest = that local=20 cable operators have little or no monopoly power and create no = programming=20 bottleneck problems, thus effectively negating the primary = justifications for=20 treating cable operators differently from other First Amendment = speakers. -=20 - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - = - - -=20

Satellite broadcasting opens no opportunity for = unfunded=20 noncommercial alternative programs. Mediacom=3Ds monopoly is infringed = by=20 satellite programming only in the general sense that viewers have a real = choice=20 between cable or satellite feeds. But once the viewer makes that choice, = Mediacom has a monopoly over the programming available to that viewer, = and cable=20 viewers add up to a whopping 60% of all American viewers, and Mediacom = has XX%=20 of all cable business.

In the process [*158]of deciding not to decide on a = governing=20 standard, JUSTICE BREYER purports to discover in our cases an = expansive,=20 general principle permitting government to +directly regulate speech to = address=20 extraordinary problems, where its regulations are appropriately tailored = to=20 resolve those problems without imposing an unnecessarily great = restriction on=20 speech.+ Ante, at 11. This heretofore unknown standard is facially = subjective=20 and openly invites balancing of asserted speech interests to a degree = not=20 ordinarily permitted. It is true that the standard I endorse lacks = the=20 +flexibility+ inherent in the plurality=3Ds balancing approach, ante, at = 9, but=20 that relative rigidity is required by our precedents and is not of my = own=20 making.

Will he address the point that federal law does = nothing more=20 for PA than PERMIT cities to do what they have done from the beginning = -- grant=20 rights of way in exchange for a few channels? Do rights of way have no=20 commercial value? Could not a city charge for those rights of way, and = then buy=20 channels for PEG use? Would Justice Thomas be happier if it were done = that=20 way?

We have said that +in the realm of private speech or=20 expression, government regulation may not favor one speaker over = another,+=20 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. , , 115 S. = Ct.=20 2510, 132 L. Ed. 2d 700 (1995) (slip op., at 7), but this principle = hardly=20 supports petitioners=3D claims, for, if they do anything, the leased and = public=20 access requirements favor access programmers over cable operators. I do = not see=20 @@ 10(a) and (c) as independent restrictions on programmers, but as = intricate=20 parts of the leased and public access restrictions imposed by Congress = (and=20 state and local governments) on cable [*164]operators. The question = petitioners=20 pose is whether @@ 10(a) and (c) are improper restrictions on their free = speech=20 rights, but Turner strongly suggests that the proper question is whether = the=20 leased and public access requirements (with @@ 10(a) and (c)) are = improper=20 restrictions on the operators=3D free speech rights. In my view, the=20 constitutional presumption properly runs in favor of the operators=3D = editorial=20 discretion, and that discretion may not be burdened without a compelling = reason=20 for doing so. Petitioners=3D view that the constitutional = presumption favors=20 their asserted right to speak on access channels is directly contrary to = Turner=20 and our established precedents.

A university student activity fund is a pretty sorry = public=20 forum! Hardly wide open, but full of editorial choices! School mail = facilities?=20 How are these to be compared with a truly open forum allowing = comprehensive=20 position statements from diverse sources?

- - - - - - - - - - - - - -End Footnotes- - - - - - - = - - - - -=20 - - - - - [*172]

Cable systems are not public property. n10 Cable = systems are=20 privately owned and privately managed, and petitioners point to no case = in which=20 we have held that government may designate private property as a public = forum.=20

Not public property? They traverse public rights of = way! The=20 square inches of cable wire located on Des Moines area public property = exceed=20 the square inches of office space at 2205 Ingersoll!

The public forum doctrine is a rule governing claims = of +a=20 right of access to public property,+ Perry Ed. Assn., supra, at 44, and = has=20 never been thought to extend beyond property generally understood to = belong to=20 the government. See International Soc. for Krishna Consciousness, Inc. = v. Lee,=20 505 U.S. 672, 681, 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992) = (evidence of=20 expressive activity at rail stations, bus stations, wharves, and Ellis = Island=20 was +irrelevant to public fora analysis, because sites such as bus and = rail=20 terminals traditionally have had private ownership+ (emphasis in = original)). See=20 also id., at 678 (public forum is +government+ or +public+ property); = Perry=20 Ed. Assn., supra, at 45 (designated public forum +consists of public = property+).=20 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - = - - - -=20

n10 See G. Shapiro, P. Kurland, & J. Mercurio,=20 +CableSpeech+: The Case for First Amendment Protection 119 (1983) = (+Because=20 cable systems are operated by private rather than governmental entities, = cable=20 television cannot be characterized as a public forum and, therefore, = rights=20 derived from the public forum doctrine cannot be asserted by those who = wish to=20 express themselves on cable systems+). - - - - - - - - - - - - - - - - = -End=20 Footnotes- - - - - - - - - - - - - - - - - [*173]

Petitioners point to dictum in Cornelius v. NAACP = Legal Defense=20 & Educ. Fund, 473 U.S. 788, 801, 87 L. Ed. 2d 567, 105 S. Ct. 3439 = (1985),=20 that a public forum may consist of +private property dedicated to = public=20 use,+ but that statement has no applicability here. That statement = properly=20 refers to the common practice of formally dedicating land for streets = and parks=20 when subdividing real estate for developments. See 1A C. Antieau = & J.=20 Antieau, Antieau=3Ds Local Government Law @ 9.05 (1991); 11A E. = McQuillin, Law of=20 Municipal Corporations @ 33.03 (3d ed. 1991). Such dedications may or = may not=20 transfer title, but they at least create enforceable public easements in = the=20 dedicated land. 1A Antieau, supra, @ 9.15; 11A McQuillin, supra, @ = 33.68.=20 To the extent that those easements create a property interest in the=20 underlying land, it is that government-owned property interest that may = be=20 designated as a public forum.

It may be true, as petitioners argue, that title is = not=20 dispositive of the public forum analysis, but the nature of the = regulatory=20 restrictions placed on cable operators by local franchising authorities = are not=20 consistent with the kinds of governmental property interests we have = said may be=20 [*174]formally dedicated as public fora. Our public forum cases have = involved=20 property in which the government has held at least some formal easement = or other=20 property interest permitting the government to treat the property as its = own in=20 designating the property as a public forum. See, e. g., Hague v. = CIO, 307=20 U.S. 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939) (streets and parks); = Police=20 Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 33 L. Ed. 2d 212, 92 S. Ct. = 2286=20 (1972) (sidewalks adjoining public school); Southeastern Promotions, = Ltd. v.=20 Conrad, 420 U.S. 546, 555, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975) = (theater=20 under long-term lease to city); Carey v. Brown, 447 U.S. 455, 460-462, = 65 L. Ed.=20 2d 263, 100 S. Ct. 2286 (1980) (sidewalks in front of private = residence); Widmar=20 v. Vincent, 454 U.S. 263, 267-268, 70 L. Ed. 2d 440, 102 S. Ct. 269 = (1981)=20 (university facilities that had been opened for student activities). = That is=20 simply not true in these cases. Pursuant to federal and state law, = franchising=20 authorities require cable operators to create public access channels, = but=20 nothing in the record suggests that local franchising authorities take = any=20 formal easement or other property interest in those channels that would = permit=20 the government to designate that property as a public forum. n11 - - - - = - - - -=20 - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 Petitioners=3D argument that a property right = called +the=20 right to exclude+ has been transferred to the government is not = persuasive.=20 Though it is generally true that, excepting @ 10(c), cable operators are = forbidden to exercise editorial discretion over public access channels, = that=20 prohibition is not absolute. Section 531(e) provides that the = prohibition on=20 the exercise of editorial discretion is subject to @ 544(d)(1), which = permits=20 operators and franchising authorities to ban obscene or other = constitutionally=20 unprotected speech. Some states, however, have not permitted exercise of = that=20 authority. See, e. g., Minn. Stat. @ 238.11 (1994) (prohibiting any=20 censorship of leased or public access programming); N. Y. Pub. Serv. Law = @ 229=20 (McKinney Supp. 1996) (same). At any rate, the Court has never = recognized a=20 public forum based on a property interest +taken+ by regulatory = restriction.=20 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - = - - - -=20 - - [*175]

Similarly, assertion of government control over = private=20 property cannot justify designation of that property as a public forum. = We have=20 expressly stated that neither government ownership nor government = control=20 will guarantee public access to property. See Cornelius, supra, at = 803;=20 Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129, = 69 L.=20 Ed. 2d 517, 101 S. Ct. 2676 (1981). Government control over its own = property or=20 private property in which it has taken a cognizable property interest, = like the=20 theater in Southeastern Promotions, is consistent with designation of a = public=20 forum. But we have never even hinted that regulatory control, and=20 particularly direct regulatory control over a private entity=3Ds First = Amendment=20 speech rights, could justify creation of a public forum. Properly = construed, our=20 cases have limited the government=3Ds ability to declare a public forum = to=20 property the government owns outright, or in which the government holds = a=20 significant property interest consistent with the communicative purpose = of the=20 forum to be designated.

I don=3Dt understand why the City of Des Moines = isn=3Dt=20 acknowledged as +holding a significant property interest+ under cable = runs,=20 which is +consistent with the communicative purpose+ of PA channels.=20

Nor am I convinced that a formal transfer of a = property=20 interest in public access channels would suffice to permit a local = franchising=20 authority [*176] to designate those channels as a public forum. In no = other=20 public forum that we have recognized does a private entity, owner or = not, have=20 the obligation not only to permit another to speak, but to actually help = produce=20 and then transmit the message on that person=3Ds behalf. =

The +production and transmission help+ is as = miniscule, for a=20 cable company, as maintaining a microphone is for a public hearing at = the state=20 capitol.

Cable operators regularly retain some level of = managerial and=20 operational control over their public access channels, subject only to = the=20 requirements of federal, state, and local law and the franchise = agreement. In=20 more traditional public fora, the government shoulders the burden of=20 administering and enforcing the openness of the expressive forum, but it = is=20 frequently a private citizen, the operator, who shoulders that burden = for public=20 access channels. For instance, it is often the operator who must accept = and=20 schedule an access programmer=3Ds request for time on a channel. n12 = And, in many=20 places, the operator is actually obligated to provide production = facilities and=20 production assistance to persons seeking to produce access programming. = n13=20 Moreover, unlike a park picketer, an access programmer cannot = transmit its=20 own message. Instead, it is the operator who must transmit, or = +speak,+ the=20 access programmer=3Ds message.[*177]That the speech may be considered = the=20 operator=3Ds is driven home by 47 U.S.C. @ 559, which authorizes a = fine of up=20 to $ 10,000 and two years=3D imprisonment for any person who +transmits = over any=20 cable system any matter which is obscene.+ See also @ 558 (making = operators=20 immune for all public access programming, except that which is obscene). = n14=20 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - = - - -=20 -

The United States has carried its burden of = demonstrating that=20 @ 10(b) and its implementing regulations are narrowly tailored to = satisfy a=20 compelling governmental interest. Accordingly, I would affirm the = judgment of=20 the Court of Appeals in its entirety. I therefore concur in the judgment = upholding @ 10(a) and respectfully dissent from that portion of the = judgment=20 striking down @@ 10(b) and (c).

This HTML document was computer generated. If = there are any=20 problems we would appreciate your notifications. +../default.htm++../newsltr.htm++../index.htm++../bulleti= n.htm+ Contact: Adminitrative: +mailto:info@cmcnyls.edu+
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HTML Document posted: February 4, = 1997
United=20 States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-2026

Jay R. Coplin,

Appellant,

V.

Fairfield Public Access

Television Committee; Robert

Glocke, Chairman, FPATV

Committee; Allen Glonek, FPATV

Committee member; Susan Kessel,

FPATV Committee member; Paul

Stokstad,FPATV Committee member;*

Robert Gates, FPATV Committee

member; Lewis Wilson, II, FPATV

Station Manager; City of

Fairfield, Iowa; Robert

Rasmussen, as Mayor; Ed Malloy,

member of City Council; Jay

Silverman, member of City

Council; Philip Young, member

of City Council; Joe Frakes,

member of City Council; Richard

Schneider, member of City

Council; Jeff Harris, member of

City Council; Mary Louise

Sutherlin, member of City

Council,

Appellees.

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* Appeal from the United States

District Court for the

* Southern District of Iowa.

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Submitted: December 9, 1996

Filed: April 30, 1997

Before McMILLJLAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

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MAGILL, Circuit Judge.

Randy Coplin brought this action under 42 U.S.C. ~ = 1983 (1994)=20 against the Fairfield Public Access Television Committee (FPATV = Committee) and=20 members of the Fairfield, Iowa City Council (Council) for alleged = violations of=20 Coplin=3Ds rights under the First Amendment and the Cable Communications = Policy=20 Act of 1984, 47 U.S.C. ~ 521-559 (1994 & Supp. I 1995). Coplin seeks = injunctive relief, declaratory relief, monetary damages, and = attorney=3Ds fees.=20 The district court bifurcated the proceedings; the issues on which = Coplin sought=20 injunctive and declaratory relief were to be presented in a bench trial = while=20 the monetary damages and attorney=3Ds fees claims were to be heard, if = necessary,=20 in a jury trial. Upon cross-motions for summary judgment in the bench = trial, the=20 district court granted summary judgment to the FPATV Committee and the = Council,=20 dismissing Coplin=3Ds claims for injunctive and declaratory relief. The = district=20 court also held that 47 U.S.C. ~ 555a(a) (1994) precludes Coplin from = recovering=20 monetary damages and attorney=3Ds fees. We affirm in part, reverse in = part, and=20 remand.

I.

The FPATV Committee is a regulatory and advisory = board created=20 by the Council. The primary responsibility of the FPATV Committee is to=20 supervise, manage, and control the activities of the Fairfield Public = Access=20 Television channel (FPATV). To fulfill its responsibility, the FPATV = Committee=20 promulgated the +Fairfield Public Access TV Rules, Regulations and = Guidelines+=20 (FPATV Rules).

Footnote 2: Following the bifurcation of the = proceedings, the=20 parties agreed, pursuant to 28 U.S.C. =A7 636(c) (1994), to have the = case tried by=20 a United States Magistrate Judge.

-2-

Under FPATV Rule 1(A), +[t]he Fairfield Public Access = TV=20 (FPATV) facilities and cablecasting on Fairfield=3Ds Public Access TV = channel are=20 available to any resident of the City of Fairfield and its surrounding = cable=20 broadcast areas.+ FPATV Rule 1(A), reprinted in J.A. at 340.

In May 1993, Coplin began producing and hosting a = regularly=20 scheduled talk show entitled Fairfield Speaks that he cablecast = over=20 FPATV. The show featured interviews with community leaders in = government,=20 business, and education as well as coverage of community events and = movie=20 reviews. Coplin opened each show by displaying and reading a disclaimer, = required by FPATV rules, that informed the public that FPATV was not = responsible=20 for the content of Coplin=3Ds program.

In 1994, a local newspaper columnist, Marni Mellen, = wrote an=20 editorial critical of Coplin. In response, Coplin cablecast a segment on = his=20 September 26, 1994 show satirizing Mellen=3Ds views. During the segment. = a woman=20 allegedly pulled up her blouse and exposed_her brassiere to the = television=20 camera. In October 1994, the Council and the FPATV Committee passed a = resolution=20 declaring the brassiere incident objectionable, and Coplin received a = formal=20 +Objectionable Content Warning+ shortly thereafter. The letter warned = Coplin=20 that +if similar incidents occur in your future productions(,] you may = [be]=20 subject to sanctions by the FPATV Committee. These sanctions may include = disallowing your use of FPATV.+ Letter from Lewis Wilson II, Manager of = FPATV=20 (Oct. 9, 1994) at 1, reprinted in J.A. at 157.

Before the warning was thirty days old, Coplin = included, on his=20 October 23, 1994 show, a one hour-long, live call-in segment in which he = invited=20 members of his viewing audience to respond by telephone to the = University of=20 Chicago=3Ds +Sex in America+ survey,

-3-

the results of which had recently been published by = Time=20 magazine. Philip Elmer-Dewitt, Now for the Truth about Americans and = Sex,=20 Time, Oct. 17, 1994, at 62, reprinted in J.A. at 192. The segment = was=20 co-hosted by Patti Schneider, a woman who also produced her own show on = FPATV.=20 During the segment, Coplin was dressed in a Halloween costume, including = a mask=20 and a wig.

Before any viewers called in, Coplin displayed and = read a sign=20 warning that +Fairfield is participating in a sex survey, please be = discreet and=20 candid in your responses.+ Fairfield Speaks Tr. (Oct. 24, 1995) = at 2,=20 reprinted in J.A. at 160. Coplin then turned to the Time article. = Reading=20 a question from the article, Coplin asked viewers if they had +the = nagging=20 suspicion that in bedrooms across the country, on kitchen tables, in = limos and=20 other venues too scintillating to mention, other folks are having more = sex,=20 livelier sex and better sex.+ ~. (quoting Elmer- Dewitt, Now for the = Truth=20 about Americans and Sex, at 62, reprinted in J.A. at 192). He = then=20 started taking callers on the air. The calls were cablecast live with no = delay.

One caller, named Lyle, who claimed to live in a = trailer park,=20 responded to the question by reporting that +I have that suspicion that = other=20 people are having more sex, because my neighbor, I look at their window = and I=20 see them going at it all the time.+ ~. at 5, reprinted in J.A. at = 163.=20 With prompting from Coplin, Lyle then revealed the exact address of his=20 neighbor=3Ds residence (Trailer Park Residence). ~ at 6, reprinted = in J.A.=20 at 164. It was later learned that this residence actually does exist. = During=20 this exchange, Lyle spoke in an accent that he claimed was Irish, yet he = also=20 claimed that he was from Italy. See jj. at 7-8, reprinted = in J.A.=20 at 165-66.

-4--

The next caller objected to the content of the = segment, arguing=20 that +this is certainly not in very good taste.+ Id. at 11, reprinted = in=20 J.A. at 169. Coplin and his co-host then engaged the caller in a = discussion=20 about the types of programming that he would prefer. After the call was=20 completed, Coplin and his co-host questioned whether the complaining = caller=20 might be +someone on the board.+ ~ at 12, reprinted in J.A. at = 170.=20 Although never revealed on the air, it was later learned that the caller = was in=20 fact the husband of an FPATV Committee board member.

The following caller identified himself only as = +Backyard.+=20 Backyard conjectured that the complaining caller did not like the = segment +cause=20 he don=3Dt get no sex.+ ~. He further suggested that the complaining = caller was=20 +probably doing the five knuckle shuffle on the old fist pump right now, = anyway.+ Id.~

Several callers later, a man identifying himself as = +Gordo+=20 bragged: +I get as much sex as I need.+ ~. at 25, reprinted in = J.A. at=20 183. He claimed to live on the Harrison part of Second Street in = Fairfield.=20 Gordo opined that +[i]f you live there, you=3Dll get more sex than = you=3Dll ever=20 need.+ ~ When asked if the sex on Second Street was +premarital sex, = marital sex=20 or extramarital sex,+ Gordo responded: +Every kind you can think of.+ ~ = at 26,=20 reprinted in J.A. at 184. He then proceeded to identify a = particular=20 house on Second Street (Second Street Residence) by giving its address. = It was=20 later learned that this residence exists and was occupied at the time. = Gordo=20 reported that +There=3Ds this green truck that comes there and stays . . = until=20 four in the morning.+ Gordo also reported that the truck comes +[a]round = lunch=20 time+ to which Coplin responded: +Well, kind of a nooner, huh?+ Id.

-5-

The final caller claimed that he lived in the same = neighborhood=20 as Lyle, the earlier caller allegedly from Italy who spoke in an Irish = brogue.=20 With Coplin=3Ds encouragement, the final caller confirmed that the = occupants of=20 the Trailer Park Residence +go at it all night and day.+ ~ at 28, = reprinted=20 in J.A. at 186. The final caller, like Lyle, gave the address of the = residence.

On October 27, 1994, the FPATV Committee convened one = of its=20 regularly scheduled meetings and voted to ban Coplin from producing his = show,=20 appearing on any other FPATV show, and using FPATV facilities. Coplin = was=20 informed of this decision in a letter dated October 31, 1994. In the = letter, the=20 FPATV Committee also explained that they were taking disciplinary action = because=20 of the content of Coplin=3Ds programs. ~ Letter from Lewis Wilson II, = Manager of=20 FPATV (Oct. 31, 1994) at 1, reprinted in J.A. at 201 (barring = Coplin from=20 FPATV for +the illegal acts of: 1. Invasion of personal privacy. 2. = Having=20 content which is, libelous, slanderous, or defamatory either to = individuals,=20 families, or organizations+) . On November 3, 1994, Coplin received a = letter=20 from Fairfield City Attorney, John Morrissey, clarifying the October 31=20 letter.

Morrissey explained that the October 31 letter was = only a=20 preliminary determination and that Coplin had a right to a hearing = before the=20 FPATV Committee under Article V(C) (1) of the FPATV Rules. Letter from = John=20 Morrissey (Nov. 2, 1994) at 1-2, reprinted in J.A. at 211-12.

Coplin appealed the decision on November 10, 1994, = and the=20 FPATV Committee set a hearing for December 1, 1994. At the hearing, = Coplin=20 responded to the FPATV Committee=3Ds allegations. FPATV Committee = members then=20 introduced additional allegations during the latter part of the meeting, = but=20 Coplin was not allowed to respond to these allegations. The meeting was=20 continued until December 7, 1994, so that the new allegations could be = more=20 fully discussed. Coplin attended the second meeting, but was not allowed = to=20 participate.

The FPATV Committee voted to sanction Coplin for the = live=20 call-in segment. The FPATV Committee sent Coplin a letter informing him = that the=20 FPATV Committee had decided to suspend him +in whole from the station = for six=20 (6) months from December 7, 1994, after which he will be eligible to = apply for=20 reinstatement through a hearing with the FPATV Committee.+ Letter from = Robert=20 Glocke, Chairman of FPATV Committee (Dec. 19, 1994) at 2, = reprinted=20 in J.A. at 302.

Coplin appealed the FPATV Committee=3Ds decision to = the City=20 Council, which heard arguments on Coplin=3Ds appeal. The Council voted = to uphold=20 the six-month suspension, but modified the term to begin on November 1, = 1994,=20 rather than December 7, 1994. Coplin brought this ~ 1983 action in the = district=20 court against the FPATV Committee and the Council, seeking injunctive = relief,=20 declaratory relief, monetary damages, and attorney=3Ds fees.

The FPATV Committee and the Council moved to dismiss = Coplin=3Ds=20 claim for monetary damages and attorney=3Ds fees. See Partial = Mot. to=20 Dismiss (May 22, 1995), reprinted in Jt. Supp. App. at 354. The = FPATV=20 Committee and Council filed a brief in support of their motion, and = Coplin=20 responded with a brief resisting the partial motion to dismiss. The = district=20 court denied the partial motion to dismiss without prejudice. Order = (July 3,=20 1995), reprinted in Jt. Supp. App. at 373.

The district court then bifurcated the action between = the=20 liability and damages phases. With the agreement of the parties, the = district=20 court ordered that +In the first phase of a bifurcated trial, a bench = trial=20 encompassing the issues on which plaintiff seeks declaratory and = injunctive=20 relief, will be held before [a magistrate judge]+ and that +In the = second phase=20 of trial, a jury trial on any valid monetary damage claims, will be = scheduled=20 for a later date, if necessary.+

After the magistrate judge set a date for the bench = trial, both=20 sides moved for summary judgment on Coplin=3Ds claims for injunctive and = declaratory relief. With respect to Coplin=3Ds claims for monetary = damages and=20 attorney=3Ds fees, none of the parties moved for summary judgment or = presented=20 arguments to the magistrate judge.

The magistrate judge granted summary judgment to the = FPATV=20 Committee and the Council on Coplin=3Ds claims for injunctive and = declaratory=20 relief. In addition to rejecting several other arguments raised by = Coplin, the=20 magistrate judge concluded that +if the statements about the sexual = habits of=20 the residents of [the Trailer Park Residence] and possible extramarital = affair=20 at [the Second Street Residence], and masturbation habits of a caller = were=20 true, [Coplin=3Ds] broadcast was an invasion of privacy.+ Mem. = Op. at 15=20 (emphasis in original) (citing Iowa case law). In the alternative, the=20 magistrate judge concluded that +[i]f the statements were untrue, = then=20 [Coplin=3Ds] broadcast was defamatory.+ ~ (emphasis in original) (citing = Iowa case=20 law). The magistrate judge therefore concluded that +Coplin=3Ds = statements=20 broadcast on the +Sex Survey+ show were not constitutionally protected = speech=20 and were subject to sanction without violating his constitutional = rights.+ I~2=20 In addition, the magistrate judge ruled that 47

Footnote 2: The magistrate judge apparently concluded = that,=20 regardless of whether the statements cablecast on Coplin=3Ds show were = true or=20 false, Coplin committed a state-law tort and that, as a result, = Coplin=3Ds speech=20 was unprotected. We recognize that the United States Supreme Court has = shown a=20 certain degree of deference for state regulation of tortious speech. ~ = Gertz=20 v. Robert ~ 418 U.S. 323, 347 (1974) (holding that, consistent with = the=20 First amendment, +the States may define for themselves the appropriate = standard=20 of liability for a publisher or broadcaster of defamatory = falsehood=20 injurious to a private individual+). nevertheless, speech = constituting a=20 state-law tort is not necessarily unprotected speech. As the Supreme = Court has=20 made clear, states may not regulate speech merely because the speech is = defined=20 as a state-law tort. ~ New York Times Co. v.Sullivan, 376 U.S. = 254, 283=20 (1964) (holding that +the Constitution delimits a State=3Ds power to = award damages=20 for libel in actions brought by public officials against critics of = their=20 official conduct+).

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U.S.C. =A7 555a(a) precludes Coplin from recovering = monetary=20 damages and attorney=3Ds fees in this action. Coplin appeals.

II.

Coplin argues that his First Amendment rights were = violated=20 because the FPATV Committee and the Council regulated his speech on the = basis of=20 its content. The FPATV Committee and Council counter that their actions = were=20 permissible because Coplin engaged in speech that can be regulated based = on its=20 content.³ Because we do not agree that the FPATV Committee = and the=20 Council are entitled to judgment as a matter of law, we reverse the = district=20 court=3Ds grant of summary judgment and remand for further proceedings = consistent=20 with this decision.

Footnote 3: The FPATV Committee and the Council have = not=20 attempted to justify the regulation on the basis of the need to protect = children=20 from patently offensive sex-related material. See Denver Area = Educ.=20 Telecom. Consortium. Inc. v. F.C.C., 116 S. Ct. 2374, 2386 (1996)=20 (discussing the permissibility of regulating patently offensive = sex-related=20 material that is easily accessible to children). Nor does the record = indicate=20 the degree to which Coplin=3Ds show was accessible to children. = Accordingly, we do=20 not reach the issue of whether Coplin=3Ds show could be regulated, = consistently=20 with the First Amendment, in order to protect children.

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We review a grant of summary judgment de novo. = McCormack v.=20 Citibank. N.A.. 100 F.3d 532, 537 (8th Cir. 1996). Summary judgment = is only=20 appropriate where the record presents +no genuine issue as to any = material fact=20 and . . . the moving party is entitled to a judgment as a matter of = law.+ Fed.=20 R. Civ. P. 56(c). The record must be viewed in the light most favorable = to the=20 party against whom summary judgment was granted. See McCormack, = 100 F.3d=20 at 534.

+The First Amendment generally prevents government = from=20 proscribing speech, or even expressive conduct, because of disapproval = of the=20 ideas expressed. Content-based regulations are presumptively invalid.+ = R.A.V.=20 v. City of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted) . = Thus,=20 because Coplin was banned from FPATV for the content of his show, the = actions of=20 the FPATV Committee and the Council are presumptively invalid.

This presumption is not irrebuttable, however. +[O]ur = society,=20 like other free but civilized societies, has permitted restrictions upon = the=20 content of speech in a few limited areas, which are =3Dof such slight = social value=20 as a step to truth that any benefit that may be derived from them is = clearly=20 outweighed by the social interest in order and morality.=3D+ Id... at = 382-83=20 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). = Because=20 these limited areas of speech, which include, for example, obscenity, = are of=20 such slight social value, +[they] can, consistently with the First = Amendment, be=20 regulated because of their constitutionally proscribable content = . . . .+=20 . at 383 (emphasis in original).

These categories of speech are not, however, = +entirely=20 invisible to the Constitution, so that they may be made the vehicles for = content=20 discrimination unrelated to their distinctively proscribable content.+ ~ = at=20 383-84. Therefore, although the government can regulate such areas of = speech on=20 the basis of content, that regulation must be viewpoint-neutral. lie. at = 384=20 (+1 T]he government may proscribe libel; but it may not make the = further=20 content discrimination of proscribing only libel critical of the=20 government.+ (emphasis in original)) .~

Footnote 4: In addition, the standards that apply to = the=20 governmental regulation of speech ordinarily vary depending on the forum = in=20 which the regulated speech is delivered. Thus, +control over access to a = nonpublic forum can be based on subject matter and speaker identity so = long as=20 the distinctions drawn are reasonable in light of the purpose served by = the=20 forum and are viewpoint / neutral.+ Lamb=3Ds Chapel v. Center = Moriches=20 Union Free School D.i.~t..₁, 508 U.S. 384, 392-93 (1993)=20 (quotations, citations, and alteration omitted) . However, to control = access to=20 a designated public forum, the government must be able to show a = compelling=20 governmental interest for its restrictions. See Cornelius v. = NAACP=20 v. Legal Defense & Educ. Fund. Inc., 473 U.S. 788, 800 = (1985).

Because the Council designated that FPATV was = +available to any=20 resident of the City of Fairfield and its surrounding cable broadcast = areas,+=20 FPATV Rule 1(A), reprinted in J.A. at 340 (emphasis added), we = would=20 ordinarily conclude, under a standard forum analysis, that FPATV was a=20 designated public forum. However, the recent decision of a deeply = divided Court=20 in Denver Area Educ. Telecom. Consortium. Inc. V. F.C.C., = 116 S.=20 Ct. 2374 (1996), has cast some doubt on the appropriateness of this = analysis.=20 The Denver Area Court addressed +First Amendment challenges to = three=20 statutory provisions that seek to regulate the broadcasting of = =3Dpatently=20 offensive=3D sex-related material on cable television,+ i~ at 2380, = including=20 public access channels like FPATV. In a plurality opinion joined by = Justices=20 Stevens, O=3DConnor, and Souter, Justice Breyer cautioned that:

[T]he First Amendment embodies an overarching = commitment to=20 protect speech from Government regulation through close judicial = scrutiny,=20 thereby enforcing the Constitution=3Ds constraints, but without imposing = judicial=20 formulae so rigid that they become a straightjacket that disables = Government=20 from responding to serious problems. This Court, in different contexts, = has=20 consistently held that the Government may directly regulate speech to = address=20 extraordinary problems, where its regulations are appropriately tailored = to=20 resolve those problems without imposing an unnecessarily great = restriction on=20 speech.

Justices Kennedy and Thomas would have us further = declare=20 which, among the many applications of the general approach that this = Court has=20 developed over the years, we are applying here. But no definitive choice = among=20 competing analogies (broadcast, common carrier, bookstore) allows us to = declare=20 a rigid single standard, good for now and for all future media and = purposes.

[A]ware as we are of the changes taking place in the = law, the=20 technology, and the industrial structure, related to telecommunications, = we=20 believe it unwise and unnecessary definitively to pick one analogy or = one=20 specific set of words now. We therefore think it premature to answer the = broad=20 [question] . . . whether public access channels are a public forum. = Id.,. at=20 2385 (citations omitted)

Justice Kennedy, who wrote separately and was joined = by Justice=20 Ginsburg, found +the most disturbing aspect of [Breyer=3Ds] plurality = opinion+ to=20 be +its evasion of any clear legal standard in deciding [the] case.+ at = 2405.=20 similarly, Justice Thomas, joined by the Chief Justice and Justice = Scalia,=20 characterized the plurality=3Ds opinion as +deciding not to decide on a = governing=20 standard+ and faulted the plurality for +openly invit[ing] balancing of = asserted=20 speech interests to a degree not ordinarily permitted.+ I~ at 2422.

We would agree that, at least with respect to the = appropriate=20 analysis that should be applied in the present action, the = plurality=3Ds=20 opinion seems somewhat enigmatic. Nevertheless, after closely = reviewing the=20 structure of FPATV, we hold that the FPATV Committee and the Council = have=20 sufficiently opened FPATV to the citizens of Fairfield and the = surrounding=20 broadcast area that control over access cannot be based on subject = matter or=20 speaker identity, at least insofar as the speaker is a citizen of = Fairfield or=20 the surrounding broadcast area. Furthermore, we hold that the FPATV = Committee=20 and the Council have neither alleged nor proven +extraordinary = problems,+=20 see Id. at 2385, that would justify barring Coplin from using = FPATV.

=9712-

In the present action, the magistrate judge concluded = that=20 Coplin=3Ds speech could be regulated on the basis of content if the = speech=20 constituted either an invasion of privacy or defamation. The magistrate = judge=20 then held as a matter of law that the statements made on Coplin=3Ds show = were, if=20 true, an invasion of privacy and, if false, defamation. On this basis, = the=20 magistrate judge granted the FPATV Committee=3Ds and Council=3Ds motion = for summary=20 judgment.

Because the magistrate judge made no factual findings = with=20 respect to the truthfulness and accuracy of the statements made on = Coplin=3Ds=20 cablecast, the magistrate judge=3Ds grant of summary judgment was = dependent on=20 Coplin=3Ds speech being an invasion of privacy, it true, and defamation, = if false.=20 As a result, we cannot affirm the magistrate judge=3Ds decision unless = this Court=20 can rule as a matter of law both (1) that the statements are a = constitutionally=20 proscribable invasion of privacy if true and (2) that the statements are = constitutionally proscribable defamation if false. If either one of = these two=20 prongs of analysis cannot be satisfied, the FPATV Committee and Council = are not=20 entitled to judgment as a matter of law. Because this Court can reach = neither=20 conclusion as a matter of law, we conclude that summary judgment was=20 inappropriate. Accordingly, we reverse the district court=3Ds grant of = summary=20 judgment.

A.

The magistrate judge held that, if Coplin=3Ds speech = were true,=20 it constituted an invasion of privacy under Iowa law and could therefore = be=20 regulated consistently with the First Amendment. Iowa recognizes an = action in=20 tort for the invasion of privacy and, like many states, has drawn the = elements=20 of this action from the Second Restatement of Torts. See ~

v. American Black Hawk Broad. Co., 416 N.W.2d = 685, 686=20 (Iowa 1987). Under Iowa law, as relevant here, +=3D [t]he right of = privacy is=20 invaded by . . . unreasonable intrusion upon the seclusion of another . = . . tori=20 unreasonable publicity given to the other=3Ds private life . . . .=3D+ ~ = (quoting

-14-

Restatement (Second) of Torts =A7 652A(2) (1977)). = These actions=20 are subject to certain limitations, however, that are informed by First=20 Amendment concerns. See Howard v. Des Moines Register & = Tribune=20 Co., 283 N.W.2d 289, 297-98 (Iowa 1979). In general, a plaintiff = cannot=20 bring an action for an invasion of privacy if a reasonable person would = not find=20 the intrusion highly offensive, the facts revealed are already in the = public=20 domain, or the matter publicized is a legitimate concern of public = interest.=20 See 416 N.W.2d at 686-87; ~ 283 N.W.2d at 298; Wineaard v. = 260=20 N.W.2d 816, 822-23 (Iowa 1978)

As the Supreme Court has recognized, there is = +tension between=20 the right which the First Amendment accords to free press, on the one = hand, and=20 the protections which various statutes and common-law doctrines accord = to=20 personal privacy against the publication of truthful information, on the = other .=20 . . .+ The Florida Star v. B.J.F., 491 U.S. 524, 530 (1989). Yet = neither=20 the Supreme Court nor this Circuit has set forth a general standard to = determine=20 when speech that reveals truthful facts about private individuals can be = regulated, consistently with the First Amendment. Indeed, the = Supreme=20 Court has declined several invitations to do so. ~

~g.., j~. at 532 (declining +appellant=3Ds invitation = to hold=20 broadly that truthful publication may never be punished consistent with = the=20 First Amendment+ and noting that +[o]ur cases have carefully eschewed=20 reaching

this ultimate question, mindful that the future may = bring=20 scenarios which 1 prudence counsels our not resolving anticipatorily+); = Cox=20 Broad. Corp. v.

~bn, 420 U.S. 469, 491 (1975) (+Rather than address = the broader=20 question whether truthful publications may ever be subjected to civil or = criminal liability consistently with the First and Fourteenth = Amendments, or to=20 put it another way, whether the State may ever define and protect an = area of=20 privacy free from unwanted publicity in the press, it is

-15-

appropriate to focus on the narrower interface = between press=20 and privacy that this case presents . . .

Although the Supreme Court has declined to reach this = issue, we=20 agree with the Seventh Circuit that the Court was not +being coy in ~ or = Florida Star in declining to declare the tort of publicizing = intensely=20 personal facts totally defunct.+ Haynes V. Alfred A. Knoof. Inc., = 8 F.3d=20 1222, 1232 (7th Cir. 1993). Instead, after reviewing Supreme Court = precedent and=20 the decisions of other circuits that have faced the tension between the = First=20 Amendment=3Ds protection of free speech and state-law actions in tort = for the=20 invasion of privacy, we conclude that speech that reveals truthful and = accurate=20 facts about a private individual can, consistently with the First = Amendment, be=20 regulated because of its

constitutionally proscribable content. ~ Gilbert = v. Medical=20 Econ. / ~2.. 665 F.2d 305, 308 (10th Cir. 1981) = (+[D]issemination of=20 non-newsworthy private facts is not protected by the first amendment.+); = c.f.=20 Haynes, 8 F.3d at 1232 (+The Court must believe that the First Amendment = greatly=20 circumscribes the right even of a private figure to obtain damages for = the=20 publication of newsworthy facts about him, even when they are facts of a = kind=20 that people want very much to conceal.+).

We also hold, however, that such regulation is = subject to=20 substantial limitations. Only in the +extreme case+ is it = constitutionally=20 permissible for a governmental entity to regulate the public disclosure = of facts=20 about private individuals. See Gilbert, 665 F.2d at 308. = In order=20 to insure that this form of regulation is limited to the extreme case, = courts=20 have

___________ 2

imposed four constitutionally mandated restrictions = on the=20 regulation of the public disclosure of private facts. The first and most = fundamental restriction is that such regulation must be=20 viewpoint-neutral. Cf. RAV., 505 U.S. at 384 (+[T]he government may=20 proscribe libel; but

-16-

it may not make the further content discrimination of = proscribing Q~11~ libel critical of the government.+ (emphasis in=20 original)).

Second, to censure an individual for the = dissemination of facts=20 about a private individual, the facts revealed must not already be in = the public=20 domain. ~.L The Florida Star, 491 U.S. at 541 (holding that a = newspaper=20 could not be held liable for publishing the name of a rape victim which = it had=20 lawfully obtained from a publicly released police report because +where = a=20 newspaper publishes truthful information which it has lawfully obtained, = punishment may lawfully be imposed, if at all, only when narrowly = tailored to a=20 state interest of the highest order+); ~ 420 U.S. at 491 (holding that = the State=20 may not +impose sanctions on the accurate publication of the name of a = rape=20 victim obtained from public records--more specifically, from judicial = records=20 which are maintained in connection with a public prosecution and which=20 themselves are open to public inspection+ notwithstanding the desire of = the=20 victim=3Ds family to prevent disclosure of the victim=3Ds name).

Third, the facts revealed about the otherwise private = individual must not be the subject of legitimate public interest. = See=20 Time Inc. v. Hill, 385 U.S. 374, 388 (1967) (+The guarantees for = speech=20 and press are not the preserve of political expression or comment upon = public=20 affairs, essential as those are to healthy government. One need only = pick up any=20 newspaper or magazine to comprehend the vast range of published matter = which=20 exposes persons to public view, both private citizens and public = officials. .=20 .

Freedom of discussion, if it would fulfill its = historic=20 function in this nation, must embrace all issues about which information = is=20 needed or appropriate to enable the members of society to cope with the=20 exigencies of their period.+ (citations and quotations omitted)); = Haynes, 8 F.3d=20 at 1232 (+People who do not desire the

-17-

limelight and do not deliberately choose a way of = life or=20 course of conduct calculated to thrust them into it nevertheless have no = legal=20 right to extinguish it if the experiences that have befallen them are=20 newsworthy, even if they would prefer that those experiences be kept = private.+);=20 Gilbert, 665 F.2d at 308 (+[T]he first amendment protects the = publication of=20 private facts that are =3Dnewsworthy,=3D that is, of legitimate concern = to the=20 public.+); Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. = 1980)=20 (per curiam) (The First Amendment privilege for the public disclosure of = facts=20 +extends to information concerning interesting phases of human activity = and=20 embraces all issues about which information is needed or appropriate so = that=20 individuals may cope with the exigencies of their period.+).

Finally, for regulation to be permissible, the facts = revealed=20 must be highly offensive. See Haynes, 8 F.3d at 1234-35 = (noting in=20 a suit for invasion of privacy that +[t]he core . . . of privacy law . . = . is=20 the protection of those intimate physical details the publicizing of = which would=20 not be merely embarrassing and painful but deeply shocking to the = average person=20 subjected to such exposure+); ~ 665 F.2d at 307 (+In attempting to = strike an=20 acceptable balance between [First Amendment privileges and the invasion = of=20 privacy], liability may be imposed for publicizing matters concerning = the=20 private life of another if the matter publicized is the kind that . . . = would be=20 highly offensive to a reasonable person . . . .+ (quotations omitted));=20 Campbell, 614 F.2d at 397 (+[T]he inquiry in determining the = applicability of=20 the [First Amendment] privilege [of broadcasting news of public interest = concerning private figures] focuses on the information disclosed by = publication=20 and asks whether truthful information of legitimate concern to the = public is=20 publicized in a manner that is not highly offensive to a reasonable = person.+)=20 -

-18-

In sum, absent a compelling state interest, speech = that reveals=20 truthful and accurate facts about a private individual can be regulated, = consistently with the First Amendment, because of its constitutionally=20 proscribable content only if: (1) any such regulation is = viewpoint-neutral; (2)=20 the facts revealed are not already in the public domain; (3) the facts = revealed=20 about the otherwise private individual are not a legitimate subject of = public=20 interest; and (4) the facts revealed are highly offensive. Accordingly, = to avoid=20 violating an individual=3Ds rights under the First Amendment, = governmental=20 regulation of the public disclosure of facts about private individuals = must=20 satisfy all four of these requirements.

In the present action, based on the record before us, = we cannot=20 rule as a matter of law that all four restrictions have been satisfied. = While we=20 agree with the magistrate judge that the Committee=3Ds actions were = viewpoint=20 neutral, ~ Mem. Op. at 13, genuine issues of material fact remain with = respect=20 to the other three factors.

We cannot determine as a matter of law that the = information=20 revealed on Coplin=3Ds show was not already in the public domain because = this=20 determination is inherently fact-intensive and we do not have the = necessary=20 facts before us. Indeed, we strongly suspect that the report on = Coplin=3Ds show=20 that a green truck regularly parks on a Fairfield city street at midday = is not=20 private information. Moreover, it is an open question whether the sexual = practices of the Trailer Park Residence occupants were in the public = domain. If=20 the neighbors of that residence could readily view the sexual activity = occurring=20 there, it is not inconceivable that the sexual activities were so openly = performed that knowledge of these activities was already in the public=20 domain.

-19-

We have similar concerns about the remaining factors. = Although=20 we agree that, in most circumstances, holding up the sexual activities = of a=20 specific private individual to public ridicule is not a legitimate = concern of=20 public interest and that doing so is highly offensive, the record = reveals=20 nothing about the identity of the occupants of the residences in = question. The=20 magistrate judge=3Ds decision implicitly assumes that the occupants of = the Trailer=20 Park Residence and the Second Street Residence were private individuals. = If=20 these individuals were instead public figures or public officials, then = the=20 public dissemination of truthful and accurate facts about them would = almost=20 certainly have been protected by the First Amendment. ~L Garrison v.=20 Louisiana, 379 U.S. 64, 72-73 (1964) (=3D~In any event, where the = criticism is=20 of public officials and their conduct of public business, the interest = in=20 private reputation is overborne by the larger public interest, secured = by the=20 Constitution, in the dissemination of truth.+). Because we know nothing = of the=20 individual or individuals living at the Trailer Park Residence and = nothing of=20 the individual or individuals living at the Second Street Residence, we = cannot=20 rule as a matter of law that the information revealed on Coplin=3Ds show = was not a=20 legitimate concern of public interest or that it was highly = offensive.

The FPATV Committee and Council have submitted no = evidence that=20 the

=3D1~

facts are not already in the public domain, that the = facts=20 revealed are not a legitimate concern of public interest, and that the = facts are=20 highly offensive. Indeed, they have not even alleged that these elements = have

been met. As a result, the FPATV Committee and = Council have=20 failed to rebut the presumption that

-20-

their content-based regulation of Coplin=3Ds show was = invalid.=20 See R.A.V., 505 U.S. at 382.~

B.

The magistrate judge also held that, if Coplin=3Ds = speech were=20 untrue, it was defamatory and hence could be regulated consistently with = the=20 First Amendment. As defined under Iowa law, +[d]efamation involves the=20 publication of written or oral statements which tend to injure a = person=3Ds=20 reputation and good name.+ Kerndt v. Rolling Hills Nat=3Dl Bank, = 558 N.W.2d=20 410, 418 (Iowa 1997). We agree that defamation of a private individual = is a form=20 of speech that can be regulated because of its constitutionally = proscribable=20 content. See R.A.V., 505 U.S. at 383.

However, such regulation must be viewpoint-neutral. = See=20 j~ at 383=9784. Moreover, defamation of a public figure is not a form of = speech=20 that can be regulated because of its content unless there is +clear and=20 convincing evidence+ that the defamatory statement was made +with actual = malice,=20 ~ with knowledge that it was false or with reckless disregard of whether = it was=20 false or not.+ Masson v. New Yorker Magazine. Inc., 501 U.S. 496, = 510=20 (1991); 1~ New York Times Co. v. Sullivan, 376 U.S. 254, 282 = (1964)

Footnote 5: In addition, we cannot rule as a matter = of law that=20 Coplin invaded the privacy of the caller whose alleged masturbation = habits were=20 ridiculed. The caller was never identified by name or by address. Coplin = and his=20 co-host merely questioned whether the caller might be +someone on the = board.+=20 Fairfield Speaks Tr. (Oct. 24, 1994) at 12, reprinted in = J.A. at=20 170. There is also no indication in the record that the caller=3Ds voice = was=20 recognizable to Coplin or to members of the viewing audience. = Consequently, it=20 is impossible to conclude as a matter of law that the privacy of this = individual=20 was invaded in any meaningful sense.

-21-

Again, from the record before us, we cannot determine = as a=20 matter of law whether the individuals held up for scorn were public or = private=20 figures. The FPATV Committee have neither alleged nor provided any = evidence that=20 these individuals are private individuals. Moreover, the FPATV Committee = and the=20 Council have neither alleged nor presented +clear and convincing+ = evidence that=20 Coplin knowingly or recklessly defamed any of the individuals ridiculed = on his=20 program. As a result, it was inappropriate to rule as a matter of law = that=20 Coplin=3Ds speech, if false, was constitutionally proscribable = defamation.

C.

Even if we could rule as a matter of law that the = statements=20 made on Coplin=3Ds show were an invasion of privacy if true and = defamation if=20 false, summary judgment for the FPATV Committee and the Council members = would=20 still not necessarily be appropriate. Coplin has raised several other = First=20 Amendment contentions on appeal that may preclude summary = judgment.⁶=20 Because we remand for further fact-finding, we need not address any = other issue=20 raised here on appeal. See Ashwander v. Tennessee Valley=20 Authority, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) = (+The=20 Court will not anticipate a question of constitutional law in advance of = the

Footnote 6: Coplin argues on appeal that: (1) the = FPATV=20 Committee and the Council must allege and prove a compelling = governmental=20 interest to prohibit him from using FPATV; (2) Coplin cannot be held = liable for=20 the speech of the callers on his show; (3) the First Amendment forbids = holding=20 speakers liable for statements, like the ones made on his show, that = cannot=20 reasonably be taken as factual; (4) the Council=3Ds administrative = regime for=20 policing speech on FPATV impermissibly gives political officials = unconstrained=20 and unreviewed authority to censor; (5) the FPATV Committee=3Ds order = barring=20 Coplin from FPATV is an unconstitutional prior restraint on speech; and = (6) the=20 FPATV Committee=3Ds ban is not narrowly tailored to the limited interest = of=20 regulating tortious speech.

-22-

necessity of deciding it.+ (quotations and citations = omitted));=20 ~ Brockett V. Spokane Arcades. Inc., 472 U.S. 491, 501 (1985) = (+We call=20 to mind two of the cardinal rules governing the federal courts: one, = never to=20 anticipate a question of constitutional law in advance of the necessity = of

NI

deciding it; the other never to formulate a rule of=20 constitutional law broader than is required by the precise facts to = which it is=20 to be

applied.+ (quotations, citations, and alteration = omitted)).

III.

Coplin challenges the magistrate judge=3Ds holding = that he is not=20 entitled as a matter of law to monetary damages under 47 U.S.C. =A7 = 555a(a). He=20 argues that the magistrate judge=3Ds decision on this issue was = procedurally=20 improper because the magistrate judge was only supposed to rule on = matters of=20 declaratory and injunctive relief in the first phase of Coplin=3Ds = bifurcated=20 suit. However, because Coplin=3Ds allegations of monetary damages and = attorney=3Ds=20 fees fail to state a claim upon which relief may be granted, any = procedural=20 error that the magistrate judge may have committed by ruling that Coplin = is not=20 entitled to monetary damages is harmless.

A district court can grant summary judgment sua = sponte as long=20 as the +party against whom judgment will be entered was given sufficient = advance=20 notice and an adequate opportunity to demonstrate why summary judgment = should=20 not be granted.+ Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. = 1995)=20 (quotations and citations omitted). However, even where the party = against whom=20 judgment was entered is not notified and is not given a chance to = respond to a=20 motion to dismiss, this Court can uphold a district court=3Ds grant of = summary=20 judgment if the losing party has failed to state a claim upon which = relief may=20 be granted. See ~

-23-

United States Federal Government, 15 F.3d 735, = 739 (8th=20 Cir. 1994) (holding that, even though the district court granted summary = judgment improperly because (1) it failed to notify the habeas = petitioner of its=20 intention to treat a motion to dismiss as a motion for summary judgment, = (2) it=20 failed to give the petitioner an opportunity to respond to the motion, = and (3)=20 the record did not support summary judgment, any error was harmless = because the=20 petitioner failed to state a claim upon which relief could be = granted).

Because =A7 555a(a) limits Coplin=3Ds potential = recovery in this=20 action to declaratory and injunctive relief, Coplin=3Ds allegations that = he is=20 entitled to monetary damages and attorney=3Ds fees fail to state a claim = upon=20 which relief may be granted. Section 555a(a) provides:

In any court proceeding pending on or initiated after = October=20 5, 1992, involving any claim against a franchising authority or other=20 governmental entity, or any official, member, employee, or agent of such = authority or entity, arising from the regulation of cable service or = from a=20 decision of approval or disapproval with respect to a grant, renewal, = transfer,=20 or amendment of a franchise, any relief, to the extent such relief is = required=20 by any other provision of Federal, State, or local law, shall be limited = to=20 injunctive relief and declaratory relief.

47 U.S.C. =A7 555a(a).

Coplin=3Ds sole argument that =A7 555a(a) does not = bar his recovery=20 of monetary damages and attorney=3Ds fees is that the actions taken by = the FPATV=20 Committee and the Council members did not +aris[e] from the regulation = of cable=20 service.+ ~ Pointing to the legislative history of the Cable Act, he = argues that=20 =A7 555a(a) was intended only to prevent cable operators from

-24-

The Court in Turner found that the FCC=3Ds must-carry = rules=20 implicated the First Amendment rights of both cable operators and cable=20 programmers. The rules interfered with the operators=3D editorial = discretion=20 [*155]by forcing them to carry broadcast programming that they might not = otherwise carry, and they interfered with the programmers=3D ability to = compete=20 for space on the operators=3D channels. Id., at (slip op., at 19-20); = id., at=20 (slip op., at 1-2) (O=3DCONNOR, J., concurring in part and dissenting in = part). We=20 implicitly recognized in Turner that the programmer=3Ds right to compete = for=20 channel space is derivative of, and subordinate to, the operator=3Ds = editorial=20 discretion. Like a free-lance writer seeking a paper in which to publish = newspaper editorials, a programmer is protected in searching for an = outlet for=20 cable programming, but has no free-standing First Amendment right to = have that=20 programming transmitted. Cf. Miami Herald Publishing Co. v. Tornillo, = 418 U.S.=20 at 256-258. Likewise, the rights of would-be viewers are derivative of = the=20 speech rights of operators and programmers. Cf. Virginia Bd. of Pharmacy = v.=20 Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757, 48 L. = Ed. 2d=20 346, 96 S. Ct. 1817 (1976) (+Freedom of speech presupposes a willing = speaker.=20 But where a speaker exists, . . . the protection afforded is to the=20 communication, to its source and to its recipients both+).[*156]Viewers = have a=20 general right to see what a willing operator transmits, but, under = Tornillo and=20 Pacific Gas, they certainly have no right to force an unwilling operator = to=20 speak.

In the case of a free lance writer, there are more = willing=20 writers than physical space available, so of course a newspaper editor = MUST pick=20 and choose according to his personal view of quality. If someone like me = doesn=3Dt=20 agree with his notion of quality, he can try to get subscribers to his = own=20 newspaper, as I have done. Likewise as PA producers fill up the 15% = maximum=20 required channel capacity, perhaps cable companies will acquire rights = to pick=20 and choose by additional criteria besides +first come first served+. But = in Des=20 Moines where there is so much extra channel capacity that each producer = gets two=20 airings, (which we all deeply appreciate), none of these arguments = apply. The=20 Turner concerns don=3Dt apply. Well, it may be companies are forced to = carry more=20 programs, but there is no problem with producers competing = unsuccessfully for=20 time.

There IS this public need. Monopoly. Monopoly = financially is=20 unfair, but monopoly of information is dangerous to freedom.

The plurality = refuses to=20 analyze public access channels as public forums because it is reluctant = to=20 decide +the extent to which private property can be designated a public = forum,+=20 ante, at 12. We need not decide here any broad issue of whether private = property=20 can be declared a public forum by simple governmental decree. That is = not what=20 happens in the creation of public access channels. Rather, in return for = granting cable operators [*117]easements to use public rights-of-way for = their=20 cable lines, local governments have bargained for a right to use cable = lines for=20 public access channels. ...

No, the correct analogy is the government=3Ds = creation of a band=20 shell in which all types of music might be performed except for dynamite = blasts.=20 Obscenity is not protected speech. It doesn=3Dt fall in the same = category. Rap=20 music may come close to dynamite blasts, but obscenity does not come = close to=20 speech. All Justice Kennedy=3Ds statements are compelling arguments for = protecting=20 political or religious speech, but some of them sound absurd in the = service of=20 pornography.

we have been reluctant to mark off new categories of = speech for=20 diminished constitutional protection. Our hesitancy reflects skepticism = about=20 the possibility of courts=3D drawing principled distinctions to use in = judging=20 governmental restrictions on speech and ideas, Cohen, supra, at 25, a = concern=20 heightened here by the inextricability of indecency from expression. = +[W]e=20 cannot indulge the facile assumption that one can forbid particular = words=20 without also running a substantial risk of suppressing ideas in the = process.+=20 403 U.S. at 26. The same is true of forbidding programs indecent in some = respect. In artistic or political settings, indecency may [*136]have = strong=20 communicative content, protesting conventional norms or giving an edge = to a work=20 by conveying +otherwise inexpressible emotions,+ Ibid. In scientific = programs,=20 the more graphic the depiction (even if to the point of offensiveness), = the more=20 accurate and comprehensive the portrayal of the truth may be. Indecency = often is=20 inseparable from the ideas and viewpoints conveyed, or separable only = with loss=20 of truth or expressive power.

Our task is first to determine what would be right, = and then to=20 analyze Supreme Court precedent to try to foresee whether the Court will = affirm=20 our findings, and also to double check for wisdom to compare with our = own as a=20 double check against our own.

w

Consequently, if one wishes to view the permissive = provisions=20 before us through a +public forum+ lens, one should view those = provisions as=20 limiting the otherwise totally open nature of the forum that leased = access=20 channels provide for communication of other than patently offensive = sexual=20 material--taking account of the fact that the limitation was imposed in = light of=20 experience gained from maintaining a totally open +forum.+ One must = still ask=20 whether the First Amendment forbids the limitation. But unless a label alone were = to make a=20 critical First Amendment difference [*43](and we think here it does = not),=20 the features of this case that we = have=20 already discussed--the government=3Ds interest in protecting children, = the=20 +permissive+ aspect of the statute, and the nature of the = medium--sufficiently=20 justify the +limitation+ on the availability of this forum.

The first is the historical background. As JUSTICE = KENNEDY=20 points out, see post, at 9-12, cable operators have traditionally agreed = to=20 reserve channel capacity for public, governmental, and educational = channels as=20 part of the consideration they give municipalities that award them cable = franchises. See H. R. Rep. No. 98-934, at 30. In the terms preferred by = JUSTICE=20 THOMAS, see post, at 17-18, the requirement to reserve capacity for = public=20 access channels is similar to the reservation of a public easement, or a = dedication of land for streets and parks, as part of a municipality=3Ds = approval=20 of a subdivision of land. Cf. post, at 15-16 (KENNEDY, J.).

Another reason cable companies don=3Dt need as much = editorial=20 power over public access as over leased access programs: There simply is = no=20 problem which needs to be fixed. ...noting=20 that leased, not public access channels, regularly carry sexually = explicit=20 programming in New York, ...relevant +abuses+ likely occurred on leased=20 channels)....The Commission itself did not report any examples of = +indecent+=20 programs on public access channels. ...did not identify any = +inappropriate+=20 programming that actually exists on public access channels). ...(+Our = access=20 channels have been on the air since 1986 without a single incident which = would=20 be covered by Section 10 of the new law+); ...(+In 10 years of access = operations=20 with over 30,000 access programs cablecast not a single obscenity = violation has=20 ever occurred+);... +there has never been a serious problem with the = content of=20 programming on the channel+).

The statute=3Ds third provision, as implemented by FCC regulation, is = similar=20 to its first provision, in that it too permits a cable [*60]operator to prevent = transmission of=20 +patently offensive+ programming, in=20 this case on public access channels. 1992 Act, @ 10(c); 47 CFR @ = 76.702=20 (1995). But there are four important differences.

Page 11 11children.Docket 1, Exhibit B at 15. The Revised Manual = edited this=20 provision as well. The new provision retained the above language, but = added a=20 special policy for what it termed +potentially offensive+ material. = According to=20 this section, AOTV would +cablecast programs which are defined as = `potentially=20 offensive,=3D+ (Docket 1, Exhibit B at 15), but +with a viewer warning = in a late=20 night time slot.+ Id. at 16. The Revised Manual defined +potentially = offensive+=20 programming as including, but not limited to, +(1) +Extreme slang or = vulgar=20 language;+ (2)+Sexually [sic] activities not defined under obscenity;+=20 (3)+Extreme acts or depictions of violence;+ or (4) +Depictions of = agraphic=20 nature.+ Id. It further = provided that,=20 each producer is responsible to notify AOTV on the AirTime Request Form = whether=20 his/her programming contains any +potentially offensive+ material = according to=20 the above guidelines. Should any producer fail to properly disclose the=20 +potentially offensive+ nature of the program on the Form, AOTV has the = right to=20 suspend or terminate the producer=3Ds privileges. Any suspension or = termination of=20 privileges will include both the producer and all other persons = associated with=20 the production of the program. Id. Defendants have never suggested = that=20 plaintiffs=3D broadcasts contained +potentially offensive+ material.+=20 Nevertheless, plaintiffs object to both the notification requirement and = AOTV=3Ds=20 assertion of its right to sanction non-compliance. The provision

The first issue is whether AOTV is a state actor for purposes of the=20 Fourteenth and First Amendments. AOTV must be a state actor if the = plaintiffs=20 are to be permitted to assert their =A7 1983 claims under the First = Amendment. See=20 Lugar v. Edmonson Oil Co., 457 U.S. 922, 929(1982) (+[I]t is clear that = in a =A7=20 1983 action brought against a state official, the statutory requirement = of=20 action `under color of state law=3D and the `state action=3D requirement = of the=20 Fourteenth Amendment are identical.+). The second issue is whether AOTV = is a=20 +public forum.+ The +state actor+ issue is more difficult than may = appear on the=20 surface. No federal = decision cited=20 by the parties, or located by this court, has positively found state = action in a=20 PEG case such as this one. One decision in the Southern District of New = York,=20 cited by AOTV, found to the contrary, rejecting a PEG programmer=3Ds = challenge on=20 the ground that the cable provider was not a state actor. Glendora v. = Marshall,=20 947 F. Supp. 707, 712

Process Clause, and private conduct, against which the Amendment = affords no=20 shield, no matter how unfair that conduct may be,+NCAA v. Tarkanian, 488 = U.S.=20 179, 191 (1988), is not always easy. As the Supreme Court has remarked, +[i]t is fair to say = that `our=20 cases deciding when private action might be deemed that of the state = have not=20 been a model of consistency.=3D+ Lebron v.=20 NationalRailroad Passenger Corp., 513 U.S. 374, 378 (1995), = quotingEdmonson v.=20 Leesville Concrete Co., 500 U.S. 614, 632 (1991)(O=3DConnor, J. = dissenting). What=20 is clear is that each case must be examined on its facts, and amid the = diversity=20 of opinion in the Court=3Ds precedents, +examples may be the best = teachers.+=20 Brentwood, 121 S.Ct. at 930. The most persuasive authority suggests = that AOTV=20 is a state actor. The Supreme Court=3Ds Lebron decision is perhaps the = most=20 compelling guidepost in this misty area. There, the Court held that=20 when +the = Government=20 creates a corporation by special law,for the furtherance of governmental = objectives, and retains for itself permanent authority to appoint a = majority of=20 the directors of that corporation, the corporation is part of the = Government for=20 purposes of the First Amendment.+ 513=20 U.S. at 400. All of these factors are substantially met here. First, = AOTV was=20 created by the Town of Athol (+Athol+)through its license agreement with = Time-Warner Cable (+Time-

public,+ and that +[a]ny resident of the Town, or anyorganization or=20 institution based in the Town, shall have theright to place locally = produced=20 programming on the AccessChannel.+ (Docket 1, Exhibit A at 23). The agreement further provides = that the=20 channel shall be managed +for the benefit of the community.+ Id. at 25. See also H.R.Rep. No. 98-934, = 30(+Public=20 access channels . . . provide groups and individuals who generally have = not had=20 access to the electronic media with the opportunity to become sources of = information in the electronic marketplace of ideas.+). Like the public = park in=20 Evans, AOTV +serves the community.+ 382 U.S. at 302.

Third, Athol has retained authority through its Board of Selectmen to = appoint=20 all -- not just a majority -- of the members of the +Access Group,+ = which=20 manages and operates AOTV. (Docket1, Exhibit A at 24). Indeed, at least = one of=20 the members of the Access Group is also a member of the appointing Athol = Board=20 of Selectmen and a defendant in this case, Foristall. Although the = record is not=20 clear as to whether the Board of Selectmen also has the power to remove = members=20 of the Access Group, Lebron notes that the power of removal is not a=20 necessary condition for state action. See 384 U.S. at 398.These = factors make=20 it highly probable, at least on the factsrevealed so far, that AOTV will = be=20 found to be a state actor for

Page 21 21

purposes of the First and Fourteenth Amendments. Like any other = entity that=20 is created by the government to serve the community whose directors are=20 appointed by the government, AOTV is bound by the mandates of the First=20 Amendment. Thus, in the remainder of the +substantial likelihood+ = analysis, AOTV=20 will be treated as a state actor for purposes of evaluating the = plaintiffs=3D=20 First Amendment claims.

B.Public Forum

Plaintiffs argue that, as well as being a state actor, AOTV is a = +public=20 forum+ within the meaning of the First Amendment. Again, this question = is open=20 to debate. Justices Kennedy and Ginsburg appear to agree with the = plaintiffs. In=20 Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 = U.S. 727=20 (1996), Justice Kennedy=3Ds concurrence made it very clear that he and = Justice=20 Ginsburg believed that +[a] public access channel is a public forum.+ = Id.at 783=20 (concurring in part, dissenting in part). Justice Kennedy observed that = a=20 channel like AOTV is +open to programming by the public.+ Id. at 790. He = also=20 pointed out that the House Report +characterized public access channels = as `the=20 video equivalent of the speaker=3Ds soap box or the electronic parallel = to the=20 printed leaflet.=3D+ Id. at 791, quoting H.R. Rep. No. 98-934 at 30. = Chief Justice=20 Rehnquist, and Justices Thomas and Scalia

Page 22 22

would likely disagree. Justice Thomas=3D dissent in Denver Area = stated=20 explicitly that he and the Chief Justice, as well as Justice Scalia, = believed=20 that +[p]ublic access channels are not public forums.+ 518 U.S. at 831=20 (concurring in the judgment in part, dissenting in part). For Justice = Thomas,=20 the fact that the public access channel in Denver Area was private = property was=20 most salient. He pointed out that the only Supreme Court cases in which = private=20 property had been treated as a public forum were cases +in which the = government=20 has held at least some formal easement or other property interest = permitting the=20 government to treat the property as its own in designating the property = as a=20 public forum.+ Id.at 828.

According to Justice Thomas, neither the Cable Act nor a franchise = agreement=20 was sufficient to transform private property into a public forum. +[W]e = have=20 never even hinted that regulatory control, and particularly direct = regulatory=20 control over a private entity=3Ds First Amendment speech rights, could = justify=20 creation of a public forum.+ Id. at 829. Thus, Justice Thomas would have = upheld=20 a cable operator=3Ds right to prohibit programming on a PEG channel that = it=20 +reasonably believes . . .depicts sexual . . . activities or organs in a = patently offensive manner,+ over the First Amendment rights of the = producers and=20 viewers to transmit or watch such programming. Id. at 831.

Page 23 6

In light of this fractured decision, it is unsurprising that the = only=20 other court in the First Circuit to address the issue found +no = precedent for=20 treating a cable access channel as[a public forum].+ See Eane v. = Town of=20 Auburn, No. 96-40180(D.Mass. January 28, 1997)(order denying preliminary = injunction).23

As might be expected, the plaintiffs take the side of Justice = Kennedy,=20 pointing to the public function of AOTV and to the Cable Act House = Report,=20 quoted above, which describes PEG channels as the equivalent of a = +speaker=3Ds=20 soapbox.+ AOTV takes the side of Justice Thomas and argues that because = AOTV is=20 private property, it cannot be a public forum. The plurality in Denver = Area=20 declined to decide the public forum issue. According to the plurality, = the=20 +categorial approaches+ of Justices Kennedy and Thomas lacked = flexibility. Id.=20 at 727. Justice Breyer wrote: [A]ware as we are of the changes taking = place in=20 the law, the technology, and the industrial structure relating to=20 telecommunications, we believe it unwise and unnecessary definitively to = pick=20 one analogy or one specific set of words now. We therefore think it = premature to=20 answer the broad questions that Justices Kennedy and Thomas raise in = their=20 efforts to find a definitive analogy, deciding for example, the extent = to which=20 private property can be designated a public forum, whether public access = channels are a public forum, whether exclusion from common carriage must = for all=20 purposes be treated like exclusion from a public forum, and whether the=20 interests of the owners of the media always subordinate the interests of = all=20 other users of a medium. 518 U.S. at 742-743 (internal citations = omitted).6

However, the = Breyer=20 plurality was not entirely neutral. It did not deny that public access = channels=20 had some of the

Page 24 = 24

characteristics of a public forum, and concluded that restrictions on = their=20 use were deserving of heightened, if not strict, scrutiny. The = Denver Area=20 plurality disavowed +definitive categorical analysis,+ 518 U.S. at 774 = (Souter,=20 J.concurring), and +a definitive analogy,+ 518 U.S. at 742(plurality = opinion),=20 but not heightened First Amendment scrutiny.=20 This conclusion is borne out by the Court=3Ds holding that the = +segregate and=20 block+ restrictions in Denver Area were not narrowly or reasonably = tailored, and=20 thereby +sacrific[ed]important First Amendment interests for too = speculative a=20 gain.+518 U.S. at 760 (quotations omitted). Justice Kennedy described = the=20 plurality as +settling for synonyms.+ 518 U.S. at 786 (concurring in = part,=20 dissenting inpart). As he put it, in the plurality opinion +`[c]lose=20 judicialscrutiny=3D is substituted for strict scrutiny, and `extremely = important=20 problem,=3D or `extraordinary problem,=3D is substituted for `compelling = interest.=3D+=20 Id. (citations omitted). He objected further that, +[w]e are told the = Act must=20 be `appropriately tailored,=3D `sufficiently tailored,=3D or `carefully = and=20 appropriately addressed,=3D to the problems at hand --anything, = evidently, except=20 `narrowly tailored.=3D+ Id. Fortunately, this motion does not require = the court to=20 resolve the Denver Area conundrum. Six Justices of the Court

agree, at least, that heightened scrutiny applies, as can be seen = from the=20 opinions of Justices Breyer and Kennedy. Six Justices also agree that = individual=20 public forum cases provide useful analogies when analyzing First = Amendment=20 challenges to restrictions on PEG channels. See 518 U.S. at 747=20 (pluralityopinion)(+Pacifica = provides=20 the closest analogy+), and 518 U.S.at 791 (Kennedy, J., concurring in = part and=20 dissenting in part)(discussing and comparing public forum cases). = Thus, a court that analyzes a = PEG=20 restriction with +heightened+ scrutiny, and by analogy to other cases = can be=20 sure, at least, that its standard will not be overly demanding. Viewed = in this=20 light, the issues raised by this case are not particularly difficult. As = will be=20 seen, two provisions of the Revised Manual are manifestly content-based, = and=20 therefore under well established Supreme Court authority must be subject = to=20 strict scrutiny, in any event. The other two provisions fit comfortably = within=20 the evaluative framework established by the plurality in Denver Area. = Therefore,=20 at this time, the court need not decide whether AOTV is, as a technical = matter,=20 a +public forum+ for purposes of deciding the motion for preliminary=20 injunction.

The Release = Form=20 Provision is not likely to survive heightened scrutiny. As noted, the 2000 Manual contained a provision = stating=20 that +release forms for persons recording during [electronic news = gathering=20 (ENG)] are not required.+(Docket 1, Exhibit B at 15). The Revised = Manual=20 eliminated this exemption. If the Release Form Provision were challenged = merely=20 on its face, the question might be difficult. For example, the = provision, as=20 written, might be interpreted to refer only to copyrighted material.=20 (Huh?)=20 But this was not merely a = facial=20 challenge. Demarest was suspended for thirty days for failing = to+obtain[] all=20 necessary releases . . . from individual(s),+ and challenged the = provision as=20 applied to her. In particular, the Suspension Letter confirmed that = the Release Form Provision was = being=20 applied to require release forms from all persons whose voices or images = were=20 recorded for PEG broadcasts as part of electronic news gathering. The = only=20 motive AOTV articulated in support of this policy lacked any sound basis = and=20 clearly established that the provision is not aimed at +an extremely = important=20 problem.+ In its Opposition = Memorandum, AOTV=20 suggested that the +guidelines=20 [were]

designed to protect community residents.+ (Docket 8 at 9). It argued that if the court = allowed the=20 plaintiffs=3D motion, it=20 +would effectively eliminate any protection these residents may have = against=20 abuses of access resources. The Plaintiffs could continue to tape = individuals=20 without obtaining proper releases and violate residents=3D rights of = privacy and=20 publicity.+ Id. It is doubtful whether, consistent with the First = Amendment,=20 AOTV may so entirely subordinate the plaintiffs=3D right of expression = to=20 citizens=3D privacy rights. PEG channels are established to +provide = groups=20 and individuals who generally have not had access to the electronic = media with=20 the opportunity to become sources of information in the electronic = marketplace=20 of ideas.+ H.R.Rep. No. 98-934, at = 30=20 (1984), reprinted in 1984U.S.C.C.A.N. at 4667. This is borne out by = AOTV=3Ds=20 franchise agreement, which provides that AOTV shall not +have editorial = control=20 over the content of any Public Access programming placed on the = channel.+=20 (Docket 1, Exhibit A at 23). The=20 Release Form Provision effectively gives any person, even a public = figure, veto=20 power over any AOTV broadcast no matter how newsworthy. Even if the Release Form = Provision might in=20 some contexts serve a reasonable purpose, it was not, as = applied,+sufficiently=20 tailored.+ It put a suffocatingly impracticable burden upon electronic = news=20 gathering by requiring a release form from every

Page 28 28 recorded person. Obtaining a release form from every = person who=20 was recorded, for example, at a picket line, a protest, a city street, = or a town=20 meeting is simply infeasible. At base, plaintiffs had a constitutionally = protected right to record matters of public interest, see Smith v. City = of=20 Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000), cert. denied 531U.S. 978 = (2000);=20 Fordyce v. City of Seattle, 55 F.3d 436, 439(9th Cir. 1995). This right = was not=20 unlimited, of course. Plaintiffs, for example, could not have invaded = private=20 homes, no matter how newsworthy the subject. Cf. Wilson v. Lane, 526 U.S.603, 612 (1999) = (finding=20 that First Amendment rights of press did not justify allowing reporters = to ride=20 along with police on warrant executions in private homes). Similarly, = the=20 plaintiffs did not have an unlimited right to publicize private facts. = See=20 Virgil v. Time, Inc., 527 F.2d 1122, 1128 (9th Cir. 1975) (+[w]econclude = that=20 unless it be privileged as newsworthy . . . the publicizing of private = facts is=20 not protected by the First Amendment.+). See also Gilbert v. Medical = Economics Co., 665F.2d 305, 308 (10th Cir. 1981) (same); Veilleux v. = National=20 Broadcasting Co., 8 F. Supp.2d 23, 40 n.8 (D. Me. 1998)(same). = However, as=20 applied to these plaintiffs, the Release Form provision made no = distinction=20 between the newsworthy and the mundane, or between matters of public = interest=20 and purely private

Page 29 7 It should be noted that the plaintiffs make a very = plausible=20 argument that the Release Form Provision constitutes a prior restraint. = As=20 the above analysis makes clear, however, the court need not decide that = issue=20 for purposes of issuing the preliminary injunction. 29 matters. Rather = than=20 being tailored to protect legitimate interests in privacy, the Release = Form=20 Provision made Athol=3Ds news makers news editors. By refusing to sign a = release=20 form, Athol=3Ds newsmakers could ensure that their images did not appear = on AOTV.=20 It is highly probable that the filming which gave rise to Demarest=3Ds = suspension=20 will be found to be constitutionally protected.

7 Focusing on the facts of this case, it is important to underline = that the=20 Release Form Provision was applied to protect Chiasson, a local public = official.=20 As Justice Frankfurther has stated, +[o]ne of the prerogatives of = American=20 citizenship is the right to criticize public men and resources.+ = Baumgartner=20 v.United States, 322 U.S. 665, 673-674 (1944). Demarest=3Ds criticism of = Foristall=20 (a member of AOTV=3Ds board and the AtholBoard of Selectmen) for having = a conflict=20 of interest and of Chiasson (a member of Athol=3Ds Needs Assessment = Committee) for=20 receiving special treatment exemplified this right. In Hustler Magazine = v.=20 Falwell, 485 U.S. 46 (1987), the Supreme Court noted that, +[t]he sort = of robust=20 political debate encouraged by the

Page 30 30

First Amendment is bound to produce speech that is critical of those = who hold=20 public office.+ Id. at 51. In Gertz v. Robert Welch, Inc., 418 U.S. 323 = (1974),=20 the Court explained that +[a]n individual who decides to seek = governmental=20 office must accept certain necessary consequences of that involvement in = public=20 affairs. He runs the risk of closer public scrutiny than might otherwise = be the=20 case.+ Id. at 344. In sum, while the Release Form Provision might, to = some=20 extent, be defended in the abstract as a protection of privacy, its = potential=20 perniciousness is well demonstrated by the way it has been applied in = this=20 case. In addition, it is clear that the Release Form Provision = caused=20 irreparable harm. As noted above, +the loss of First Amendment freedoms, for even = minimum periods=20 of time, unquestionably constitutes irreparable injury.+ Elrod, 427 = U.S.at=20 373. The Release Form Provision = resulted in=20 Demarest=3Ds suspension, and has contributed to prohibiting Demarest and = Dunn from=20 producing and cablecasting +Think Tank 2000+ for over a year now. This = is more=20 than sufficient to support a finding of irreparable harm. The balance of = harms=20 weighs in the plaintiffs=3D favor as well. As noted above, = AOTV may not so crudely = subordinate the=20 First Amendment rights of the plaintiffs to some unlimited notions of=20 privacy. Its mission is to provide the community with

Page 31 31

a channel open to diverse programming. AOTV will not suffer the = slightest=20 injury by issuance of the injunction.=20 Plaintiffs, on the other hand, face irreparable harm if the injunction = is not=20 granted. The public interest prong of the analysis also supports = issuance of the=20 injunction. +At the heart of the First Amendment is the recognition of = the=20 fundamental importance of the free flow of ideas and opinions on matters = of=20 public interest and concern.+ Hustler, 485 U.S. at 50. Even if it were true, = as Chiasson=20 allegedly complained, that the plaintiffs +do not get their facts = straight,+ the=20 +freedom to speak one=3Ds mind is . . . a good unto itself [and] . . . = essential=20 to the common quest for truth and the vitality of society as a whole.+=20 Id. at 51. For these reasons, = the public=20 interest will be served by allowing an injunction prohibiting AOTV from=20 requiring release forms from all persons recorded for AOTV programs. = Similarly,=20 the plaintiffs=3D request that AOTV be enjoined from using the Demarest = suspension=20 as grounds for further discipline or curtailment of her use of AOTV = equipment or=20 facilities will be allowed. It was almost certainly unconstitutional to = suspend=20 Demarest for failing to get release forms from Chiasson and Britt. Thus, = to=20 further penalize Demarest for this constitutionally protected use of = AOTV=20 facilities and equipment

and the Supreme Court has cautioned that +[i]nvalidating any = rule on the=20 basis of its hypothetical application to situations not before the Court = is=20 `strong medicine=3D to be applied `sparingly and only as a last = resort.=3D+=20 FCC v. Pacifica Foundation, = 438U.S. 726,=20 743 (1977), quoting Broadrick v. Oklahoma, 413 U.S.601, 613 (1973). = +Both the=20 content and the context of speech are critical elements of First = Amendment=20 analysis.+ Id. The First Circuit adds that +a party who mounts a facial=20 challenge to a statute must carry a significantly heavier burden than = one who=20 seeks merely to sidetrack a particular application of the law.+ McGuire = v.=20 Reilly, 260 F.3d 36, 46-47 (1st Cir. 2001). In the First Amendment = context, this=20 means that a plaintiff who challenges a statute on its face = ordinarily must=20 show either that the law admits of no valid application or that, even if = one or=20 more valid application exists, the law=3Ds reach nevertheless is so = elongated that=20 it threatens to inhibit constitutionally protected speech. Id. at = 47.The=20 Potentially Offensive Provision unquestionably +regulates speech based = upon its=20 content.+ United States v. Playboy Entertainment Group, Inc., 529 U.S. = 803, 813=20 (2000). Producers are required to flag programming which contains = +extreme slang=20 or vulgar language+, +sexual activities+, +extreme acts or depictions of = violence+, or=20 +depictions of a graphic nature.+ (Docket 1, Exhibit D at 16). Thus, = +the speech=20 in question is defined by its content.+ Playboy, 529 U.S. at 811.=20

As the Supreme Court has explained, the standard for reviewing a=20 content-based regulation is strict scrutiny. Id. at 814. Thus, the Potentially Offensive = Provision=20 must be narrowly tailored to promote a compelling interest. Id. at 813. = Despite=20 this favorable standard of review, the plaintiffs have not shown, for = purposes=20 of the preliminary injunction, that the Potentially Offensive Provision = -- on=20 its face and without the context of an actual controversy -- is not = narrowly=20 tailored to promote a compelling interest. The Supreme Court has recognized +special = justifications=20 for regulation of the broadcast media that are not applicable to other=20 speakers.+ Renov. American Civil Liberties Union, 521 U.S. 844, 868 = (1997). In=20 Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1988),the Court = noted=20 the +invasive+ character of broadcasting, and its ability to +intrude on = the=20 privacy of the home without prior warning as to program content.+ Id. at = 127-128. In FCC v. Pacifica Foundation, 438 U.S. 726 (1977), the Court = rejected=20 the notion that +the First Amendment prohibits all governmental = regulation that=20 depends on the character of speech.+ Id. at 744. AOTV, as the = administrator of a=20 PEG channel that may +intrude on the privacy of the home,+ may well = successfully=20 demonstrate that it does have a compelling interest in ensuring, for = example,=20 that depictions of sexual activity are not broadcast

Page 39 39

without warning and at hours when children are most likely to watch.=20 +[B]roadcasting is uniquely accessible to children,+Pacifica, 438 U.S. = at 726,=20 and AOTV may well be able to show that the Potentially Offensive = Provision is=20 aimed at protecting children. Thus, +[t]he ease with which children may = obtain=20 access to broadcast material,+ justifies AOTV in taking steps to ensure = that=20 +the pig+ does not +enter[] the parlor,+ during prime-time viewing = hours.=20 Pacifica, 438 U.S. at 750-751. Further, the Potentially Offensive = Provision,=20 like the regulation in Pacifica, does not attempt to ban the regulated = content=20 totally. See Sable, 492 U.S. 115 (noting that distinguishing features of = Pacifica were lack of a total ban and the unique attributes of = broadcasting).=20 Instead, it seeks merely to identify programming which would justify a = viewer=20 warning and might be more appropriate for later viewing hours. This = restriction=20 imposes a minimal burden on producers, who are most familiar with the = content of=20 their programs. The mere possibility of a sanction on the face of the = regulation=20 does not alter this analysis. As Justice Kennedy noted in Denver = Area, +time=20 segregation+ and +adult content advisories+ on PEG programming were = +measures,=20 that if challenged, would likely survive strict scrutiny as narrowly = tailored to=20 safeguard children.+ 518 U.S. 727, 808 (concurring in part, = dissenting=20 in

Page 40 40part). Thus, the plaintiffs are unlikely to prove that the=20 Potentially Offensive Provision is unconstitutional on its face. It is = also=20 unlikely that the plaintiffs can prove that the Potentially Offensive = Provision=20 is unconstitutionally vague. +A statute can be impermissibly vague = for either=20 of two reasons: first, if it fails to provide people of ordinary = intelligence a=20 reasonable opportunity to understand what conduct it prohibits; and, = second, if=20 it authorizes or even encourages arbitrary or selective enforcement.+ = Hill v.=20 Colorado, 530 U.S. 703, 732(2000). Plaintiffs suggest that the = Potentially=20 Offensive Provision fails on both accounts. They argue first that the = examples given by the provision are not defined, and may require some = guesswork=20 on the part of producers seeking to comply. That argument is obviously = correct=20 to some extent, but +because we are condemned to the use of words, we = can never=20 expect mathematical certainty from our language.+ Id. at 733 = (quotations=20 omitted). The Potentially Offensive Provision requires producers to flag = programming which contains +extreme slang or vulgar language,++sexual=20 activities,+ +extreme acts or depictions of violence,+ or +depictions of = a=20 graphic nature.+ (Docket 1, Exhibit D at 16). While there is admittedly = some=20 ambiguity in these terms, most are +common words+ that a producer of = ordinary=20 intelligence would

Page 41 41

understand. Hill, 530 U.S. at 732. For much the same reasons, the plaintiffs are not likely = to show=20 that the Potentially Offensive Provision authorized or even encouraged = arbitrary=20 or selective enforcement. No facts supporting such a claim have been = offered.=20 The Potentially Offensive = Provision is=20 not a criminal law, like the statutes in Hill or Kolender v. Lawson, 461 = U.S.=20 352, 357 (1982), which the plaintiffs cited. In sum, the plaintiffs have = not=20 convincingly demonstrated that they are likely to succeed in showing = that the=20 Potentially Offensive Provision is unconstitutionally vague. For these = reasons,=20 the plaintiffs have not met their burden of showing that they are likely = to=20 succeed on the merits of this claim. Without this showing, an analysis = of the=20 other prongs of the injunction standard is unnecessary. Plaintiffs=3D = request for=20 a preliminary injunction enjoining AOTV from enforcing the Potentially = Offensive=20 Provision will be denied. If AOTV, as plaintiffs fear, applies the = Potentially=20 Offensive Provision in an unconstitutional way, plaintiffs may seek = injunctive=20 relief at that time +in a concrete setting.+ McGuire, 260 F.3d at 47. As = noted,=20 such challenges will be reviewed under strict scrutiny. A program featuring political = criticism,=20 such as the Think Tank 2000 broadcasts discussed here, seems unlikely to = qualify=20 as +potentially offensive.+ In the

Page 42 42

meantime, plaintiffs retain the ability to prove their case on the = merits,=20 without the benefit of an injunction.

BECKER v. F.C.C. 95 F.3d 75

Daniel BECKER and Washington Area Citizens Coalition = Interested=20 in Viewers=3D Constitutional Rights, Petitioners,

V.

FEDERAL COMMUNICATIONS COMMISSION and United States = of

America, Respondents.

WAGA License, Inc., et al., Intervenors

Nos. 95=971048, 95-1056.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 23, 1996.

Decided Sept. 13, 1996.

Rehearing Denied Nov. 13, 1996.

Citizens coalition and candidate sought review of = Federal=20 Communications Commission (FCC) order permitting broadcast licensee to = restrict=20 broadcast of campaign advertisements portraying images of aborted = fetuses that=20 could be harmful to children to times of day when children were less = likely to=20 be viewing audience. The Court of Appeals, Buckley, Senior Circuit = Judge, held=20 that: (1) FCC=3Ds order violated reasonable access requirement of = statute,=20 authorizing FCC to revoke broadcaster=3Ds license for willful or = repeated failure=20 to allow reasonable access to or to permit purchase of reasonable = amounts of=20 time for use of broadcasting station by legally qualified candidate for = federal=20 elective office on behalf of his candidacy, and (2) FCC=3Ds order = permitted=20 licensees to review political advertisements and to discriminate against = candidates on basis of their content in violation of no censorship and = equal=20 opportunity provisions of statute, providing that if any licensee = per-

75

(D.C. Cir. 1996)

mits legally qualified candidate for public office to = use=20 broadcasting station, he shall afford equal opportunities to all other = such=20 candidates for that office in use of such broadcasting station and = licensee=20 shall have no power of censorship over material broadcast under this=20 statute.

Petitions for review granted; ruling vacated.

1. Statutes ~219(5)

When court reviews Federal Communication = Commission=3Ds=20 construction of statute that it administers and Congress has not = directly spoken=20 on precise question at issue, court must defer to agency=3Ds = construction of=20 statute so long as it is permissible.

2. Telecommunications ~435

Federal Communications Commission=3Ds (FCC) = declaratory ruling=20 permitting broadcast licensee to restrict broadcast of campaign = advertisements=20 portraying images of aborted fetuses that could be harmful to children = to times=20 of day when children were less likely to be viewing audience violated = reasonable=20 access requirement of statute, authorizing FCC to revoke broadcaster=3Ds = IIcense=20 for willful or repeated failure to allow reasonable access to or to = permit=20 purchase of reasonable amounts of time for use of broadcasting station = by=20 legally qualified candidate for federal elective office on behalf of his = candidacy; ruling permitted content-based channeling of nonindecent = political=20 advertisements, thus denying qualified candidates access to broadcast = media=20 envisioned by Congress. Communications Act of 1934, =A7 312(a)(7), 47 = U.S.C.A. =A7=20 312(a)(7).

3. Telecommunications ~435

Federal Communications Commission=3Ds (FCC) = declaratory ruling=20 permitting broadcast licensee to restrict broadcast of campaign = advertisements=20 portraying images of aborted fetuses that could be harmful to children = to times=20 of day when children were less likely to be viewing audience permitted = licensees=20 to review political advertisements and to discriminate against = candidates on=20 basis of their content in violation of no censorship and equal = opportunity=20 provisions of

BECKER v. F.C.C.

76

statute, providing that if any licensee permits = legally=20 qualified candidate for public office to use broadcasting station, he = shall=20 afford equal opportunities to all other such candidates for that office = in use=20 of such broadcasting station and licensee shall have no power of = censorship over=20 material broadcast under this statute. Communications Act of 1934, =A7 = 315(a), 47=20 U.S.C.A. =A7 315(a).

Petitions for Review of an Order of the Federal = Communications=20 Commission.

Andrew J. Schwartzman, Washington, DC, with whom Gigi = B. Sohn=20 was on the briefs for petitioner Washington Area Citizens Coalition = Interested=20 in Viewers=3D Constitutional Rights, argued the cause for both = petitioners. A.=20 Wray Fitch III and H. Robert Showers were on the briefs for petitioner = Daniel=20 Becker.

Daniel M. Armstrong, Associate General Counsel, = Federal=20 Communications Commission (+FCC+), Washington, DC, with whom William E. = Kennard,=20 General Counsel, and Clifford G. Pash, Jr., Counsel, FCC, and Anne K. = Bingaman,=20 Assistant Attorney General, Robert B. Nicholson, and Andrea Limmer, = Attorneys,=20 United States Department of Justice, were on the brief, argued the cause = for=20 respondents.

Irving Gastfreund, Washington, DC, was on the brief = for=20 intervenor WAGA License, Inc. Henry L. Baumann, Jack N. Goodman, and = Steven A.=20 Bookshester entered appearances for intervenor National Association of=20 Broadcasters. Joel H. Levy entered an appearance for intervenor = Louisiana=20 Television Broadcasting Corporation. Robert B. Jacobi entered an = appearance for=20 intervenor Cohn & Marks.

Before SILBERMAN and ROGERS, Circuit Judges, and = BUCKLEY,*=20 Senior Circuit Judge.

BUCKLEY, Senior Circuit Judge: * At the time of oral = argument,=20 Judge Buckley was a circuit judge in active service. He assumed

These consolidated cases arise from the efforts of a = candidate=20 for federal office to

air political advertisements portraying images of = aborted=20 fetuses during time periods of his selection. Petitioners Washington = Area=20 Citizens Coalition Interested in Viewers=3D Constitutional Rights = (+WACCI+) and=20 the candidate, Daniel Becker, seek review of a Federal Communications = Commission=20 order permitting a broadcast licensee to restrict the broadcast of = campaign=20 advertisements that may be +harmful to children+ to times of the day = when=20 children are less likely to be in the viewing audience. Petitioners = claim that=20 the ruling violates sections 312(a)(7) and 315(a) of the Communications = Act of=20 1934 (+Act+). We agree.

I. BACKGROUND

A. Legal Framework

Petitioners=3D challenge involves two sections of the = Communications Act. The first requires broadcasters to provide = candidates for=20 federal office with +reasonable access+ to the broadcast media. 47 = U.S.C. =A7=20 312(a)(7) (1994). The second guarantees all candidates for elective=20 office equal opportunities in the use of the broadcast media, and it = deprives licensees of the power of censorship over the material a = candidate=20 may wish to broadcast. Id. =A7 315(a). Of peripheral = relevance here is=20 a federal criminal statute prohibiting the broadcast of obscene, = indecent, or=20 profane language. 18 U.S.C. =A7 1464 (1994).

The 1992 election season witnessed the advent of = political=20 advertisements depicting the aftermath of abortions. See Lull = Levi,=20 The FCC, Indecency, and Anti-Abortion Political Advertising, = III Viii.=20 Sports & Ent. L.J. 85, 86=9788 (1996) (+Anti=97Abortion = Political=20 Advertising+). In that year, Daniel Becker was a qualified = candidate=20 for election to the United States House of Representatives from = Georgia=3Ds Ninth=20 Congressional District. At 7:58 p.m. on July 19, Station WAGA=97TV, = which was then=20 licensed to Gilett Communications of Atlanta, Inc.

B. The Facts

senior status on September 1, 1996.

95 FEDERAL REPORTER, 3d SERIES

(+Gillett+), aired, at Mr. Becker=3Ds request, a = campaign=20 advertisement that included photographs of aborted fetuses. WAGA=97TV = received=20 numerous complaints from viewers who saw the advertisement.

Anticipating that Mr. Becker would wish to broadcast = similar=20 materials later in the campaign, Gillett filed a petition with the = Commission=20 requesting a declaratory ruling on the following question:

Whether a licensee may channel a use by a = legally-qualified=20 federal candidate to a safe harbor when children are not generally = present in=20 the audience if the licensee determines in good faith that the = proposed use=20 is indecent or otherwise unsuitable for children.

Gillett Communications, Petition for Declara

~ Ruling at 1 (July 28, 1992). This was followed by a = petition=20 by the law firm of Kaye, Scholer, Fierman, Hays & Handler (+Kaye = Scholer+),=20 representing various unnamed broadcasters, requesting a declaratory = ruling=20 that broadcast licensees may decline to air political advertisements = that=20 +present[] graphic depictions or descriptions of aborted fetuses or any = other=20 similar graphic depictions of excised or bloody fetal tissue, where = there is, in=20 the good-faith judgment of the licensee, a reasonable risk that children = may be=20 in the audience....+ Kaye Scholer, Petition for Declaratory Ruling = at 1=20 (July 29, 1992). The firm also asked for a ruling that any determination = by a=20 broadcast licensee that such advertisements are +indecent+ within the = meaning of=20 18 U.S.C. =A7 1464 will be upheld by the Commission. Id. at = 2.

After viewing a tape of Mr. Becker=3Ds July 1992 = advertisement,=20 and in response to the two petitions, the FCC=3Ds Mass Media Bureau = (+Bureau+)=20 found, in a letter released on August 21, 1992, that the advertisement = was not=20 indecent. Letter Ruling, 7 F.C.C.R. 5599, 5560 (Aug. 21, = 1992). It=20 also concluded that +the broad prospective relief that petitioners seek = [was]=20 inconsistent with the =3Dreasonable access=3D provision of the Act....+ = Id.=20

Specifically, the Bureau stated that +[s]uch = channeling would=20 violate ... Section 312(a)(7) of the Act,+ because +channeling material = that is=20 not indecent ... would deprive federal candidates of their rights to

77

(D.C. Cfr. 1996)

determine how best to conduct their campaigns.+ = Id. at=20 5599, 5600 (citation omitted). Kaye Scholer thereafter filed an = Application for=20 Review.

In October 1992, Mr. Becker again sought to = purchase air=20 time from WAGA=97TV. He wished to broadcast a 30=97minute political = program entitled=20 +Abortion in America: The Real Story+ on November 1 between 4:00 p.m. = and 5:00=20 p.m., following a televised professional football game. WAGA=97TV = refused=20 to air the program at the time requested, claiming that the = advertisement would=20 violate the indecency provision of 18 U.S.C. =A7 1464. It stated = that it would=20 carry the program only within the safe harbor hours of midnight to 6:00 = a.m. Mr.=20 Becker filed a complaint with the FCC on October 27, 1992.

Faced with Mr. Becker=3Ds complaint and Kaye = Scholer=3Ds=20 application for review, the FCC issued a Request for Comments:

[lYle seek comment on all issues concerning what, if = any, right=20 or obligation a broadcast licensee has to channel political = advertisements=20 that it reasonably and in good faith believes are indecent. We also seek = comment=20 as to whether broadcasters have any right to channel material that, = while not=20 indecent, may be otherwise harmful to children.

7 F.C.C.R. 7297 (Oct. 30, 1992). That same day, the = Bureau=20 responded to Mr. Becker=3Ds complaint. Letter Ruling. 7 F.C.C.R. = 7282 (Oct.=20 30, 1992). Noting that the FCC had solicited comments on the interplay = of=20 sections 312(a)(7) and 315(a) and the indecency provision of the = criminal code,=20 the letter stated that

until the Commission provides definitive guidance, = ... it would=20 not be unreasonable for the licensee to . .. conclude that Section = 312(a)(7)=20 does not require it to air, outside the +safe harbor+, material that it=20 reasonably and in good faith believes is indecent.

Id. Mr. Becker subsequently filed an Application = for Review=20 with the Commission.

On November 22, 1994, the FCC issued the Memorandum = Opinion and=20 Order that is the subject of this appeal, denying Mr. Becker=3Ds = Application for=20 Review and granting Kaye Scholer=3Ds in part. In re Petition for=20 Declaratory Ruling Concerning Section 312(a)(7) of the Communications = Act, 9=20 F.C.C.R. 7638, 7649 (1994) (+Declaratory Ruling+). In it, the FCC = concluded (1) that Mr. Becker=3Ds initial advertisement was not = indecent,=20 id. at 7643; (2) that there was evidence in the record = +indicating=20 that the graphic political advertisements at issue can be = psychologically=20 damaging to children,+ id. at 7646; (3) that +nothing in = 312(a)(7)=20 precludes a broadcaster=3Ds exercise of some discretion with respect to = placement=20 of political advertisements so as to protect children,+ id.; = and (4)=20 that channeling would not violate the no-censorship provision of section = 315(a).=20 Id. at 7649.

WACCI and Mr. Becker petition the court for review of this FCC order. = WAGA=20 License, Inc., has intervened on behalf of the FCC.

II. Analysis

At the outset, we must dispose of a preliminary issue. The Commission = asks us=20 to treat the petitions for review as facial challenges to a legislative = act,=20 thus requiring petitioners to demonstrate that there is no set of = circumstances=20 under which channeling would be permissible. See, e.g., Rust v. = Sullivan,=20 500 U.S. 173, 183 (1991). This argument is creative but hardly = persuasive.=20 Petitioners do not challenge the validity of sections 312(a)(7) and = 315(a);=20 they question the FCC=3Ds interpretation that those sections allow = channeling.=20 Therefore, because the administration of the Communications Act is = entrusted=20 to the FCC, the appropriate standard for review of the Declaratory = Ruling=20 is that set forth in Chevron U.S.A. Inc. v. Natural Resources = Defense=20 Council, Inc., 467 U.S. 837, 842-43 (1984).

In that case, the Supreme Court stated that unless Congress has = +directly=20 spoken to the precise question at issue+ (in which case +that is the end = of the=20 matter+), a court must defer to the agency=3Ds construction of the = statute, so=20 long as it is +permissible.+ Id. The Court has defined = +permissible+ as=20 +rational and consistent with the statute.+ NLRB v. United Food & = Commercial Workers Union, 484 U.S. 112, 123 (1987). Because it is = conceded=20 here that Congress did not directly address the propriety of channeling, = our=20 task is to determine whether the Commission=3Ds construction of sections = 312(a)(7)=20 and 315(a) meets those criteria.

A. Section 312(a)(7)

Section 312(a)(7) was added to the Communications Act by the Federal = Election=20 Campaign Act of 1971, Pub. L. No. 92-225. It provides that a station=3Ds = license=20 may be revoked for willful or repeated failure to allow reasonable = access=20 to or to permit purchase of reasonable amounts of time for the use of a=20 broadcasting station by a legally qualified candidate for Federal = elective=20 office on behalf of his candidacy.

47 U.S.C. =A7 312(a)(7) (emphasis added). The Act does not define = +reasonable=20 access.+ The FCC=3Ds policy guidelines, however, have indicated the = nature of the=20 access that the section guarantees a qualified candidate.

In the first of those guidelines, the Commission stated that

the provisions of Section 312(a)(7) impose upon licensees ... the = specific=20 responsibility to afford ... the opportunity to purchase reasonable = amounts of=20 time to legally qualified candidates for Federal elective office.... = [T]he test=20 of whether a licensee has fulfilled its obligations under Section = 312(a)(7) is=20 one of reasonableness....

* * *

While the statute does not establish a precise or definite standard, = ... we=20 believe it is unreasonable and not in compliance with the statute for a = licensee=20 to adopt a rigid policy of refusing to sell or give prime-time = programming to=20 legally qualified candidates....

Such a refusal would deny the candidates access to the time periods = with the=20 greatest audience potential and would be inconsistent with the = Congressional=20 intent to give +... candidates for public office greater access to the = media so=20 that they may better explain their stand on the issues, and thereby more = fully=20 and completely inform the voters.+

Licensee Responsibility under Amendments to the Communications Act = Made by=20 the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516, 516-17 = (1974)=20 (+Licensee Responsibility+) (emphasis added). See also = Commission=20 Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 = F.C.C.2d=20 1079, 1089 & n.14 (1978) (+Section 312(a)(7) Policy+) = (+Congress=20 expressed a desire that licensees afford candidates ... a special right = of=20 access to a broadcasting station which no other groups enjoyed+; +a = candidate=3Ds=20 desires as to the method of conducting his ... media campaign should be=20 considered by licensees in granting reasonable access.+).

The Supreme Court found the Commission=3Ds approach to section = 312(a)(7) to be=20 +a reasoned attempt to effectuate the statute=3Ds access requirement,+ = while at=20 the same time accommodating broadcasters=3D discretion to the extent = necessary.=20 CBS, Inc. v. FCC, 453 U.S. 367, 390 (1981). In so holding, the = Court=20 recognized that +Federal candidates are the intended beneficiary of = =A7=20 312(a)(7),+ id. at 392, and that the section +did more than = simply codify=20 the pre-existing public interest standard+ governing broadcasters by = +singl[ing]=20 out+ qualified candidates and +grant[ing] them a special right of access = on an=20 individual basis.+ Id. at 379.

More recently, the Commission issued +[f]ormal guidelines for = reasonable=20 access for federal candidates+ in which it states that commercial = broadcasters=20 +must make program time available ... during prime time and other time = periods=20 unless unusual circumstances exist that render it reasonable to deny = access.+=20 Codification of the Commission=3Ds Political Programming = Policies, 7=20 F.C.C.R. 678, 681 (1991) (+1991 Policy Statement+). +Prime = time+=20 constitutes that part of the day in which the audience is likely to be = the=20 largest; the FCC has identified the hours of 7-11 p.m. as comprising = prime time=20 in the Eastern and Pacific time zones, and the hours of 6-10 p.m. in the = Central=20 and Mountain time zones. Political Primer 1984, 100 F.C.C.2d = 1476,=20 1524 (1984). As an example of circumstances that would allow a = broadcaster to=20 decline to air a political program during prime time, the FCC has cited = the=20 situation +where the number of Federal candidates ... make it impossible = for a=20 station to make prime-time program-time available.+ Section 312(a)(7) = Policy, 68 F.C.C.2d at 1090; see also Licensee = Responsibility, 47=20 F.C.C.2d at 517.

The FCC has also advised that

[a] station may not use a denial of reasonable access as means to = censor or=20 otherwise exercise control over the content of political material ... = [and=20 that]

... Licensees may not adopt a policy that flatly bans federal = candidates=20 from access to the types, lengths, and classes of time which they sell = to=20 commercial advertisers.

1991 Policy Statement, 7 F.C.C.R. at 681.

Petitioners argue that the Declaratory Ruling deviates from = its policy=20 guidelines because there is nothing in them that would allow = broadcasters to=20 take the content of a political advertisement into account in = determining what=20 constitutes +reasonable access+; nor do they permit a licensee to deny a = candidate access to adult audiences of his choice merely because = significant=20 numbers of children may also be watching television. Mr. Becker also = objects to=20 the ruling on the basis that it gives broadcasters a standardless = discretion=20 to determine whether an advertisement +may be harmful to children.+ = For its=20 part, the FCC contends that the ruling is consistent with both its past = policies=20 and the language and purpose of section 312(a)(7). Emphasizing its past = practice=20 of deferring to a broadcaster=3Ds reasonable and good faith discretion = in making=20 reasonable access decisions, the FCC argues that there is no basis = for the=20 position that it may never be appropriate for a broadcaster to take the = graphic=20 nature of abortion images into consideration when deciding at what hour = to=20 broadcast a particular advertisement.

We believe that petitioners have the better part of the argument. = As=20 we explain below, by permitting a licensee to channel political = advertisements=20 that it believes may harm children, the Declaratory Ruling = frustrates=20 what the Commission itself has identified as Congress=3Ds primary = purpose in=20 enacting section 312(a)(7); namely, to ensure +candidates access to = the time=20 periods with the greatest audience potential....+ Licensee=20 Responsibility, 47 F.C.C.2d at 517; see also Section 312(a)(7)=20 Policy, 68 F.C.C.2d at 1090. The FCC claims, nevertheless, that its = order is=20 consistent with this policy, citing the following passage from = Declaratory=20 Ruling:

If licensees do channel, ... they are expected to provide access to = times=20 with as broad an audience potential as is consistent with the federal=20 candidate=3Ds right to reasonable access. This is consistent with our = general=20 policy under Section 312(a)(7) that licensees should afford access to = federal=20 candidates in prime time, when access to voters is greatest.

9 F.C.C.R. at 7647. We are unpersuaded.

The problem with this statement is that it is not possible, on the = one=20 hand, to channel a political advertisement to a time when there is = little risk=20 +that large numbers of children may be in the audience,+ id., = and, on the=20 other, to assure the candidate of +as broad an audience potential as is=20 consistent with [his] right of reasonable access.+ Id. We = recently=20 concluded, on the basis of an FCC study issued in 1993, that +there = is a=20 reasonable risk that large numbers of children would be exposed to any = ...=20 material broadcast between 6:00 a.m. and midnight.+ Action for = Children=3Ds=20 Television v. FCC, 58 F.3d 654, 665 (D.C. Cir. 1995) (en banc)=20 (+ACT+), cert. denied, 116 S. Ct. 701 (1996). It is = apparent,=20 then, that a licensee will not be able to channel the advertisement to a = time=20 +when access to voters is greatest+ without exposing it to substantial = numbers=20 of children.

We are faced, then, with competing interests=97the licensee=3Ds = desire to=20 spare children the sight of images that are not indecent but may = nevertheless=20 prove harmful, and the interest of a political candidate in exercising = his=20 statutory right of +access to the time periods with the greatest = audience=20 potential.+ Licensee Responsibility, 47 F.C.C.2d at 517. The=20 Commission has made it clear that when these two interests are in = conflict, the=20 licensee is free to decide in favor of the children. See Declaratory=20 Ruling, 9 F.C.C.R. at 7646 (+we are unwilling to infer that Congress = ...=20 intended to strip licensees of all discretion to consider the impact of=20 political advertisements featuring graphic depictions of abortions on = children=20 in their audience.+).

Finally, while it is possible to visualize accommodations at the = margin in=20 which a political message is broadcast during school hours or the late, = late=20 evening when significantly fewer children are watching television, any = such=20 accommodation is apt to deprive a candidate of particular = categories of=20 adult viewers whom he may be especially anxious to reach. It is common = knowledge=20 that campaign strategists rely on survey research to target specific = voting=20 groups with television advertisements. See generally Dan Koeppel, = The=20 High-Tech Election (of 1992), Brandweek 18, Mar. 2, 1992. We can = surmise,=20 for example, that early shift factory workers whom a candidate wishes to = reach=20 are not apt to stay up beyond their normal bedtimes just to see his = political=20 advertisements. Thus, the ruling creates a situation where a = candidate=3Ds ability=20 to reach his target audience may be limited and his +personal campaign=20 strategies ... ignored.+ See CBS, Inc., 453 U.S. at 389.

The FCC points out that it has previously acknowledged that + +there = may be=20 circumstances when a licensee might reasonably refuse broadcast time to=20 political candidates during certain parts of the broadcast day.=3D + = Brief for=20 Respondents at 25 (quoting Section 312(a)(7) Policy, 68 F.C.C.2d = at=20 1091). The FCC has never defined those circumstances; but in describing = the=20 circumstances that a licensee is entitled to take into consideration in = refusing=20 candidates=3D access to particular time frames, the Commission=3Ds = concerns have=20 focused on making sure that the exercise by candidates of their rights = under the=20 section would not +disrupt a station=3Ds broadcast schedule.+ Section = 312(a)(7)=20 Policy, 68 F.C.C.2d at 1090; cf. CBS, Inc., 453 U.S. at 387 = (to=20 justify a denial of access, +broadcasters must cite a realistic danger = of=20 substantial program disruption ... or of an excessive number of equal = time=20 requests+). Thus, the FCC has advised that a licensee may take into = account its=20 +broader programming and business commitments, including the = multiplicity of=20 candidates in a particular race, the program disruption that will be = caused by=20 political advertising, and the amount of time already sold to a = candidate in a=20 particular race.+ 1991 Policy Statement, 7 F.C.C.R. at 681-82; = see=20 also Section 312(a)(7) Policy, 68 F.C.C.2d at 1090. None of these=20 circumstances is remotely concerned with the content of a campaign=20 advertisement, and we can see no connection between a licensee=3Ds right = to=20 protect his programming from disruption and a licensee=3Ds asserted = right to=20 shield children from the sight of disturbing images.

The Commission states, quite correctly, that in applying section = 312(a)(7),=20 it has always +rel[ied] upon the reasonable good faith judgments of = licensees to=20 determine what constitutes reasonable access.+ 1991 Policy Statement, = 7=20 F.C.C.R. at 679; see also Section 312(a)(7) Policy, 68 F.C.C.2d = at 1089.=20 The Supreme Court has cautioned, however, that +endowing licensees with = a +blank=20 check=3D to determine what constitutes +reasonable access=3D would = eviscerate =A7=20 312(a)(7).+ CBS, Inc., 453 U.S. at 390 n.12. We believe that the=20 standardless discretion that the FCC has granted broadcasters to channel = political messages will do just that. While the Declaratory = Ruling=20 emphasizes that broadcasters may not channel an advertisement +out of=20 disagreement with the candidate=3Ds political position,+ and that +[t]he = licensee=3Ds discretion should relate to the nature of the graphic = imagery in=20 question and not to any political position the candidate espouses,+ 9=20 F.C.C.R. at 7647-48, the Commission now allows licensees to = channel=20 images based entirely on a subjective judgment that a particular = advertisement=20 might prove harmful to children. All that it asks is that = that=20 judgment be +reasonable+ and made in good faith.

These are slippery standards, and it is of small solace to a = losing=20 candidate that an appellate court might eventually find that the = Commission=3Ds=20 approval of a licensee=3Ds channeling decision was an abuse of = discretion or=20 contrary to law. Moreover, the acceptance of a subjective standard = renders it=20 impossible to determine whether it was the advertisement=3Ds message = rather than=20 its images that the licensee found too shocking for tender minds.

In many instances, of course, it will be impossible to separate the = message=20 from the image, when the point of the political advertisement is to call = attention to the perceived horrors of a particular issue. Indeed, this = was the=20 apparent purpose of many of the candidates who ran abortion = advertisements=20 similar to Mr. Becker=3Ds. See Anti-Abortion Political = Advertising, III=20 Vill. Sports & Ent. L.J. at 89 n.11 (discussing candidates who felt = the=20 advertisements were +a necessary offense,+ in order to +show that it=3Ds = a life or=20 death issue+). And the political uses of television for shock effect is = not=20 limited to abortion. See id. at 95 (+Other subjects that could = easily=20 lead to shocking and graphic visual treatment include the death penalty, = gun=20 control, rape, euthanasia and animal rights.+)

Finally, in arguing that a licensee has the authority under the Act = to=20 channel material that might harm the young, the Commission points to = Congress=3Ds=20 +concern with protecting children from the adverse effects of = televised=20 material,+ Brief for Respondents at 19, and contends that +the public = interest=20 standard of the [Communications] Act clearly contemplates that = appropriate=20 measures may be taken to protect the well-being of children, as = reflected in+=20 other provisions of the Act. Id. at 20 (internal quotation = marks and=20 citation omitted) (discussing The Children=3Ds Television Act of 1990, = =A7 102, 47=20 U.S.C. =A7 303a (directing FCC to prescribe rules limiting amount of = commercial=20 advertising during children=3Ds programming); Public Telecommunications = Act of=20 1992, =A7 16(a), 47 U.S.C. =A7 303 note (instructing FCC to +promulgate = regulations=20 to prohibit the broadcasting of indecent programming ... between 6 a.m. = and 12=20 midnight+)).

We have a couple of problems with this argument. First of all, the = first=20 of the cited provisions deals with the quantity and duration of = advertisements=20 during children=3Ds programs, not their content; and the second places = no=20 restraints on the broadcasting of materials that are not indecent. = Secondly, the=20 Commission offers no evidence that Congress intended to subordinate a=20 candidate=3Ds right of reasonable access to a licensee=3Ds assessment of = the public=20 interest. To the contrary, it seems to us that the right of access = accorded=20 candidates by sections 312(a)(7) and 315(a) overrides the programming = discretion=20 that is otherwise allowed licensees by the Act, except in those = circumstances=20 already specified in the Commission=3Ds policy guidelines.

B. Section 315(a)

Section 315(a) contains the Act=3Ds +equal opportunity+ and +no = censorship+=20 provisions:

If any licensee shall permit any person who is a legally qualified = candidate=20 for any public office to use a broadcasting station, he shall afford = equal=20 opportunities to all other such candidates for that office in the use of = such=20 broadcasting station: Provided, That such licensee shall have no = power of=20 censorship over the material broadcast under the provisions of this=20 section....

47 U.S.C. =A7 315(a).

The FCC has recognized that the +[c]ase law interpreting [section = 315(a)] has=20 uniformly barred licensees from exercising any power of censorship over = the=20 content of political broadcasts whether they are +first=3D uses or = responses to=20 first uses.+ Hammond for Governor Committee, 69 F.C.C.2d 946, 947 = (Broadcast Bur. 1978). In its Declaratory Ruling, the FCC = stated:

We are not granting licensees the ability to delete political = statements. We=20 are simply recognizing that a licensee may, consistent with its public = interest=20 obligations, channel political advertisements containing graphic = abortion=20 imagery to times when, although consistent with its obligation to = provide=20 reasonable access, the likelihood that children will be in the audience = is=20 diminished. This added measure of licensee discretion does not = constitute=20 +censorship+ as that term is used in the Communications Act.

9 F.C.C.R. at 7649.

According to the FCC, that ruling is consistent with section = 315(a)=3Ds no=20 censorship provision because the Commission was careful to emphasize=20 broadcasters=3D continuing obligation to air, in full, political = advertisements=20 with graphic abortion images should they choose to channel them to times = when=20 there were not large numbers of children in the viewing audience. The = Commission=20 also insists that the ruling does not allow licensees to dictate what = issues a=20 candidate may address in its advertisement or to +exercise their = discretion in a=20 manner that has the practical effect of censorship+ by, for example, = airing the=20 advertisement during a period of +minimal viewership,+ such as 2:00 a.m. = to 6:00=20 a.m. Brief for Respondent at 27. The FCC further argues that, in any = event, the=20 competing public interest in protecting the welfare of children = outweighs +the=20 minimal intrusion on a candidate=3Ds unfettered ability to present his = message at=20 the particular time preferred by the candidate.+ Id. at 30.

For their part, petitioners assert that the ruling compromises = section=20 315(a)=3Ds no censorship provision in two ways: First, by granting = licensees the=20 content-based discretion to refuse to broadcast particular = advertisements during=20 a particular period, it enables them not only to discriminate against a=20 candidate on the basis of speech, but to inhibit the manner in which he = is able=20 to discuss public issues. Second, by enabling the licensee to determine = when an=20 advertisement that +may be harmful to children+ will air, the ruling = deprives=20 the candidate of the ability to convey his message when and how he sees = fit by=20 presenting him with the choice of either changing its content or = accepting a=20 time slot that deprives him of his preferred audience.

The FCC has never defined censorship in the context of section = 315(a),=20 although it has provided guidance in the form of lists of acts that = constitute=20 censorship and of those that do not=97neither of which refers to = channeling.=20 See Political Primer 1984, 100 F.C.C.2d at 1510-13. The Supreme = Court,=20 however, has stated that

[t]he term censorship, ... as commonly understood, connotes = any=20 examination of thought or expression in order to prevent publication of=20 +objectionable+ material. We find no clear expression of legislative = intent, nor=20 any other convincing reason to indicate Congress meant to give = +censorship+ a=20 narrower meaning in =A7 315.

Farmers Educ. & Coop. Union of Am. v. WDAY, Inc., 360 U.S. = 525, 527=20 (1959). In WDAY, Inc., the Court held that section 315(a) = prohibited a=20 broadcaster from removing defamatory statements from the advertisements = of a=20 legally qualified candidate. From the Court=3Ds discussion, we may = discern two=20 guiding principles: First, the basic purpose of section 315(a) is to = permit the=20 +full and unrestricted discussion of political issues by legally = qualified=20 candidates.+ Id. at 529. Second, the section reflects = Congress=3Ds +deep=20 hostility to censorship either by the Commission or by a licensee.+ = Id.=20 at 528.

Although the Court was discussing a case in which a licensee sought = to excise=20 certain references in a political advertisement, we believe that these=20 principles apply with equal force to this case because of the leverage = that the=20 threat of channeling provides a licensee in the heat of a political = election. As=20 the Court observed in WDAY, Inc.,

[b]ecause of the time limitation inherent in a political campaign, = erroneous=20 decisions by a station could not be corrected by the courts promptly = enough to=20 permit the candidate to bring improperly excluded material before the = public. It=20 follows from all this that allowing censorship ... would almost = inevitably force=20 a candidate to avoid controversial issues during political debates ... = and hence=20 restrict the coverage of consideration relevant to intelligent political = decision. We ... are unwilling to assume[ ] that Congress intended any = such=20 result.

360 U.S. at 530-31. See also Port Huron Broadcasting Co., 12 = F.C.C.=20 1069, 1072 (1948) (to permit the restriction of potentially libelous = material=20 would allow broadcasters to +set themselves up as the sole arbiter of = what is=20 true and what is false[,] ... an exercise of power which may be readily=20 influenced by their own sympathies and allegiances,+ and give = broadcasters +a=20 positive weapon of discrimination between contesting candidates which is = precisely the opposite of what Congress intended to provide in this=20 section+).

Not only does the power to channel confer on a licensee the power to=20 discriminate between candidates, it can force one of them to back away = from what=20 he considers to be the most effective way of presenting his position on = a=20 controversial issue lest he be deprived of the audience he is most = anxious to=20 reach. This self-censorship must surely frustrate the +full and = unrestricted=20 discussion of political issues+ envisioned by Congress.

The rationale behind WDAY, Inc. requires us to agree with = petitioners=20 that +censorship+ encompasses more than the refusal to run a = candidate=3Ds=20 advertisement or the deletion of material contained in it. The FCC = itself has=20 indicated that it understands the Supreme Court=3Ds definition of = censorship to be=20 broader than it will now acknowledge. In Radio Station WPAM, 81 = F.C.C.2d=20 492 (1980), after initially refusing to run a candidate=3Ds potentially = defamatory=20 advertisement, Station WPAM informed the political committee that was = paying for=20 it that +the spot would be broadcast +as is=3D, but stated that [the = committee]=20 would thereby risk the consequences of a later lawsuit+ for defamation.=20 Id. at 493. As a result, the candidate revised the text of his=20 advertisement. Id. The Commission observed that

were it not for WPAM=3Ds intimidating actions in the present case, = i.e., [its]=20 initial refusal to accept the announcement as submitted, followed by = grudging=20 acceptance coupled with a threat of subsequent legal action, the = candidate would=20 not have been required by the sponsoring Committee to revise the spot. = We=20 believe that this result was reasonably foreseeable. We further believe = that the=20 actions here constituted censorship, within the Supreme Court=3Ds = definition=20 in WDAY, Inc. ... in violation of Section 315(a) of the = Act.

Id. at 495. It concluded by +serving notice ... that in the = future any=20 attempts by a licensee to coerce a candidate to revise his political=20 announcement, albeit by threat of litigation or otherwise, will be = considered=20 censorship....+ Id.

In D.J. Leary, 37 F.C.C.2d 576 (1972), the FCC affirmed that a = licensee may not require a candidate to execute an agreement to = indemnify the=20 licensee against liability resulting from the candidate=3Ds political=20 advertisement because such an agreement +is likely to inhibit a = candidate=3Ds use=20 of a broadcast facility and possibly to affect his decision on whether = to=20 utilize a station to address the public.+ Id. at 577. The FCC = explained=20 that it was the intent of Congress to insure complete freedom of = expression by=20 political candidates, and therefore the no-censorship provision of = Section 315=20 prohibits any interference, direct or indirect, with such=20 expression.

Id. at 578 (emphasis added). We believe that a licensee=3Ds right = to=20 channel political advertisements will inevitably interfere with a = candidate=3Ds=20 freedom of expression by requiring him to choose between what he wishes = to say=20 and the audience he wishes to address. See Gray Communications = Systems,=20 Inc., 19 F.C.C.2d 532, 535 (1969) (+the basic objective of section = 315 [is]=20 to permit a candidate to present himself to the electorate in a manner = wholly=20 unfettered by licensee judgment as to the propriety or content of that=20 presentation+); id. (section 315(a) applies to +all program = material=20 presented as part of a candidate=3Ds use of a broadcast facility, with = no right of=20 prior approval of format or content on the part of the licensee+); In = re=20 Inquiry Concerning +Equal Time+ Requirements under Section 315, 40 = F.C.C.=20 357, 359 (1962) (+the Act bestows upon the candidate the right to choose = the=20 format and other similar aspects of the material broadcast+) (internal=20 quotations omitted).

Finally, section 315(a) not only prohibits censorship, it also = requires that=20 candidates be given +equal opportunities+ to use a broadcaster=3Ds = facilities. To=20 satisfy this requirement, a broadcaster must +make available periods of=20 approximately equal audience potential to competing candidates to the = extent=20 that this is possible.+ Political Primer 1984, 100 F.C.C.2d at = 1505. The=20 FCC claims that the Declaratory Ruling does not involve the equal = opportunity provision because there was no equal opportunity request = before it.=20 Because the equal opportunity requirements +forbid any kind of = discrimination by=20 a station between competing candidates,+ however, channeling clearly = implicates=20 the equal opportunity provision of section 315(a).

This is so because if a station channels one candidate=3Ds message = but allows=20 his opponent to broadcast his messages in prime time, the first = candidate will=20 have been denied the equal opportunity guaranteed by this section. On = the other=20 hand, if the station relegates the opponent=3Ds advertisements to the=20 broadcasting Siberia to which the first candidate was assigned, = it would=20 be violating the opponent=3Ds right of reasonable access under section = 312(a)(7).=20 We agree with petitioners that these provisions may not be read to = create such a=20 tension.

We conclude from the above that permitting the content-based = channeling of=20 political advertisements thwarts the objectives of both section = 312(a)(7) and=20 section 315(a) by restricting candidates=3D ability to +fully and = completely=20 inform the voters,+ CBS, Inc., 453 U.S. at 379 (internal = quotation marks=20 and citation omitted), and by inhibiting the +full and unrestricted = discussion=20 of political issues by legally qualified candidates,+ WDAY, Inc., = 360=20 U.S. at 529. Because the Declaratory Ruling is based on = impermissible=20 constructions of the Act to which we owe no deference, see = Chevron, 467=20 U.S. at 843, we hold that it is without legal effect.

In light of the above, we decline to address Mr. Becker=3Ds argument = that=20 channeling a candidate=3Ds campaign advertisements violates that = candidate=3Ds First=20 Amendment rights. See Ashwander v. Tennessee Valley Authority, = 297 U.S.=20 288, 347 (1936) (Brandeis, J., concurring) (+[I]f a case can be decided = on=20 either of two grounds, one involving a constitutional question, the = other a=20 question of statutory construction or general law, the Court will decide = only=20 the latter.+).

III. Conclusion

The Commission=3Ds Declaratory Ruling violates the +reasonable = access+=20 requirement of section 312(a)(7) by permitting content-based channeling = of=20 non-indecent political advertisements, thus denying qualified candidates = the=20 access to the broadcast media envisioned by Congress. The ruling also = permits=20 licensees to review political advertisements and to discriminate against = candidates on the basis of their content, in violation of both the +no=20 censorship+ and +equal opportunites+ provisions of section 315(a). = Therefore, we=20 grant the petitions for review and vacate the ruling.

So ordered.

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