Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

PETITIONER: Denver Area Educational Telecommunications Consortium, Inc.
RESPONDENT: Federal Communications Commission
LOCATION: Denver Area Consortium

DOCKET NO.: 95-124
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 518 US 727 (1996)
ARGUED: Feb 21, 1996
DECIDED: Jun 28, 1996

ADVOCATES:
I. Michael Greenberger -
Lawrence G. Wallace - Argued the cause for the respondents

Facts of the case

Sections 10(a) and 10(c) of the 1992 Cable Television Consumer Protection and Competition Act (the Act) empower leased access channel cable operators to control programming that they believe is indecent and obscene. Section 10(b) of the Act requires public access channel cable operators to restrict "patently offensive" programming to a single channel, access to which must be restricted to those subscribers who submit written requests. Petitioners, television access programmers and cable television viewers, filed suit alleging that the Act's empowerments and restrictions violated their First Amendment right to freedom of speech. This case was consolidated with Alliance for Community Media v. FCC.

Question

Do the Television Consumer Protection and Competition Act's empowerments and restrictions violate the petitioner's First Amendment right to freedom of speech?

Media for Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

Audio Transcription for Oral Argument - February 21, 1996 in Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

Audio Transcription for Opinion Announcement - June 28, 1996 in Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

John Paul Stevens:

The Chief Justice is attending a judicial conference and will not be with us this morning.

Justice Breyer has an opinion to announce.

Harry A. Blackmun:

This is the opinion in Denver Area Educational Telecommunications versus FCC.

These cases, there are two of them, involve First Amendment challenges to three sections of the Cable Television Consumer Protection and Competition Act of 1992.

The first section, Section 10(a) applies to leased access channels that are about 10-15% of the channels, say, on an 80-channel system maybe 12 channels, federal law requires cable operators to reserve for commercial lease those channels that can be leased or happen to lease by affiliated party.

The provision permits the cable system operator to control either to allow or to prohibit programming that the operator reasonably believes detect sexual activity or organs in a patently offensive manner.

That is the first one.

The second one, 10(b) also applies only to this leased access channel.

It requires cable system operators to segregate this patently offensive programming from all the other programming that is run on leased channels and then to have it broadcast on a single channel and then have it blocked so that viewers to get access have to write in up to 30 days in advance.

There is a third section and the third section is just like the first, that it gives the cable operators control over patently offensive material that this is the material that would be run not on leased access channels but on what are called public or educational or governmental channels which is another set of channels best known as education.

Now, the Circuit Court of Appeal to the District of Columbia held that all three of those provisions were constitutionally permissible.

In this opinion, and in the holdings today, we say that two of the three provisions violate the First Amendment.

The third one does not.

Now let me begin with Section 10(a), that is the one that we hold is okay.

It does not violate the First Amendment.

That is the one that permitted the cable system operator himself to control the patently offensive programming on leased channel.

Now in an opinion, in which I am joined by Justice Stevens, Justice O’Connor, and Justice Souter, the four of us find that the provision has an important indeed a compelling regulatory objective namely protecting children from the broadcast of patently offensive sexual material.

A broadcast television program, unlike the individual telephone conversations that were at issue in a different case called Sable Communications, here this broadcast is in pervasive, it is intrusive, and children are often in the audience.

The opinion also finds that the regulation is properly tailored to meet this child protecting objective.

It is permissive, allowing operator’s latitude to avoid harming children without necessarily banning the program, it will apply to a relatively narrow category of material which we discussed, and to a degree it reflects a First Amendment interest of the cable operators themselves in return to those cable operator a form of editorial control that the operators had enjoyed in respect to those channels 10 years earlier before Congress had taken that power away from that.

These and other factors make the First Amendment balance complex with no precise analogy in this Court’s earlier cases.

Nonetheless, the opinion draws support from Pacifica, a case involving the broadcast of offensive material to children which case upheld the regulation that was likely more or certainly no less restrictive that the regulation at issue here.

The court holds that the second provision, Section 10(b) requiring the blocking and segregating of offensive material.

We hold that that provision violates the First Amendment.

The opinion is for the court in this respect, in respect to this provision.

It finds the provision more restrictive that 10(a), a viewer could not watch a scrambled program for example without considerable perhaps 30 days advance planning.

Program as of individual programs could not reach viewers who tending to think that programs are judged by the company they keep just would not want watch that patently offensive channel and viewers might here being listed as people who want patently offensive programming.

We recognize that the justification, the protection of children, is compelling but there are obvious significantly less restrictive alternatives including alternatives more recently adapted in the 1996 Telecommunications Act which apply to all and not just leased channel.

We also hold unconstitutional the third provision.

Section 10(c) which permits cable system operators to allow or to prohibit patently offensive programming on public, educational, and governmental channel.