Denver Area Ed. Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727 (1996)

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No. 95-124. Argued February 21, 1996-Decided June 28,1996*

These cases involve three sections of the Cable Television Consumer Protection and Competition Act of 1992 (Act), as implemented by Federal Communications Commission (FCC) regulations. Both § 10(a) of the Act-which applies to "leased access channels" reserved under federal law for commercial lease by parties unaffiliated with the cable television system operator-and § 10(c)-which regulates "public access channels" required by local governments for public, educational, and governmental programming-essentially permit the operator to allow or prohibit "programming" that it "reasonably believes ... depicts sexual ... activities or organs in a patently offensive manner." Under § lO(b), which applies only to leased access channels, operators are required to segregate "patently offensive" programming on a single channel, to block that channel from viewer access, and to unblock it (or later to reblock it) within 30 days of a subscriber's written request. Between 1984, when Congress authorized municipalities to require operators to create public access channels, and the Act's passage, federal law prohibited operators from exercising any editorial control over the content of programs broadcast over either type of access channel. Petitioners sought judicial review of §§ 10(a), (b), and (c), and the en banc Court of Appeals held that all three sections (as implemented) were consistent with the First Amendment.

Held: The judgment is affirmed in part and reversed in part. 56 F.3d 105, affirmed in part and reversed in part.

JUSTICE BREYER delivered the opinion of the Court with respect to Part III, concluding that § 10(b) violates the First Amendment. That section's "segregate and block" requirements have obvious speechrestrictive effects for viewers, who cannot watch programs segregated on the "patently offensive" channel without considerable advance planning or receive just an occasional few such programs, and who may

*Together with No. 95-227, Alliance for Community Media et al. v.

Federal Communications Commission et al., also on certiorari to the same court.



judge a program's value through the company it keeps or refrain from subscribing to the segregated channel out of fear that the operator will disclose its subscriber list. Moreover, § 10(b) is not appropriately tailored to achieve its basic, legitimate objective of protecting children from exposure to "patently offensive" materials. Less restrictive means utilized by Congress elsewhere to protect children from "patently offensive" sexual material broadcast on cable channels indicate that § lO(b) is overly restrictive while its benefits are speculative. These include some provisions of the Telecommunications Act of 1996, which utilizes blocking without written request, "V-chips," and other significantly less restrictive means, and the "lockbox" requirement that has been in place since the Cable Act of 1984. Pp. 753-760.

JUSTICE BREYER, joined by JUSTICE STEVENS, JUSTICE O'CONNOR, and JUSTICE SOUTER, concluded in Parts I and II that § lO(a) is consistent with the First Amendment. Pp. 737-753.

(a) Close scrutiny demonstrates that § 10(a) properly addresses a serious problem without imposing, in light of the relevant competing interests, an unnecessarily great restriction on speech. First, the section comes accompanied with the extremely important child-protection justification that this Court has often found compelling. See, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126. Second, § lO(a) arises in a very particular context-congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator's control. The First Amendment interests involved are therefore complex, and require a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), see H. R. Rep. No. 98-934, pp. 31-36, and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the operator would have assigned the channels devoted to access). See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 635-637. Third, the problem § lO(a) addresses is analogous to the "indecent" radio broadcasts at issue in FCC v. Pacifica Foundation, 438 U. S. 726, and the balance Congress struck here is commensurate with the balance the Court approved in that case. Fourth, § lO(a)'s permissive nature means that 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 from exposure to patently offensive depictions of sex; the accommodation of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in Pacifica; and the flexibility inherent in an approach

Full Text of Opinion

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