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Denver Area Educ. Telcoms. Consortium v. Fcc

Supreme Court of the United States

February 21, 1996, Argued ; June 28, 1996 1, Decided

No. 95-124

Opinion

 [***895]  [*732]  [**2380]    JUSTICE BREYER announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, an opinion with respect to Parts I, II, and V, in which JUSTICE STEVENS, JUSTICE O'CONNOR, and JUSTICE SOUTER join, and an opinion with respect to Parts [****17]  IV and VI, in which JUSTICE STEVENS and JUSTICE SOUTER join.

 These cases present First Amendment challenges to three statutory provisions that seek to regulate the broadcasting of "patently offensive" sex-related material on cable television. Cable Television Consumer Protection and Competition Act of 1992 (1992 Act or Act), 106 Stat. 1486, §§ 10(a), 10(b), and 10(c), 47 U.S.C. §§ 532(h), 532(j), and [***896]  note following § 531. The provisions apply to programs broadcast over cable on what are known as "leased access channels" and "public, educational, or governmental channels." Two of the provisions essentially permit a cable system operator to prohibit the broadcasting of "programming" that the "operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner." 1992  [*733]  Act, § 10(a); see § 10(c). See also In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992: Indecent Programming and Other  [**2381]  Types of Materials on Cable Access Channels, First Report and Order, 8 FCC Rcd 998 (1993) (First Report and Order); In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, Indecent Programming and Other Types of Materials on Cable Access Channels, Second Report and Order, 8 FCC Rcd 2638 (1993) [****18]  (Second Report and Order). The remaining provision requires cable system operators to segregate certain "patently offensive" programming, to place it on a single channel, and to block that channel from viewer access unless the viewer requests access in advance and in writing. 1992 Act, § 10(b); 47 CFR § 76.701(g) (1995).

We conclude that the first provision -- that permits the operator to decide whether or not to broadcast such programs on leased access channels -- is consistent with the First Amendment. The second provision, that requires leased channel operators to segregate and to block that programming, and the third provision, applicable to public, educational, and governmental channels, violate the First Amendment, for they are not appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to "patently offensive" material.

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518 U.S. 727 *; 116 S. Ct. 2374 **; 135 L. Ed. 2d 888 ***; 1996 U.S. LEXIS 4261 ****; 64 U.S.L.W. 4706; 96 Cal. Daily Op. Service 4792; 96 Daily Journal DAR 7697; 3 Comm. Reg. (P & F) 545; 10 Fla. L. Weekly Fed. S 139

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., ET AL., PETITIONERS 95-124 v. FEDERAL COMMUNICATIONS COMMISSION ET AL. ALLIANCE FOR COMMUNITY MEDIA, ET AL., PETITIONERS 95-227 v. FEDERAL COMMUNICATIONS COMMISSION ET AL.

Prior History:  [****1]  ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

Disposition: 56 F.3d 105, affirmed in part and reversed in part.

CORE TERMS

channels, programming, cable, leased, First Amendment, indecent, broadcast, public access, programmers, public forum, regulations, cable operator, block, cases, plurality, editorial, patently offensive, provisions, franchise, cable system, subscriber, ban, Communications, restrictions, television, segregate, media, strict scrutiny, authorities, rights

Communications Law, Regulated Practices, Introducing Competition, Leased Commercial Access, Contracts Law, Types of Contracts, Lease Agreements, General Overview, Real Property Law, Commercial Leases, Business & Corporate Compliance, Communications Law, Federal Acts, Cable Communications Policy Act, Regulated Entities, Cable Systems, Public Enforcement, Public Access, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Bill of Rights, Obscenity, Governments, Legislation, Interpretation