First Amendment FCC Notes
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These notes have not been kept up to date nor do they cover all First Amendment subjects. These might be useful as a starting place, but they are not a stopping place. Information found on this page should be thoroughly researched and reviewed.First Amendment Doctrines * Federal Agency Implementation of Law
First Amendment And Communications
First Amendment and Communications
Censorship of Communications Generally
"Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." 47 U.S.C. ' 326.
Red Lion: The Public right is more imporatnat than the broadcasters right. The spectrum is scarce. Broadcasters must give back to the public when they use the public resource.
Must Take Medium into Account
The Supreme Court held in Sable Communications of California, Inc. v. FCC that indecency law and the First Amendment cannot be applied across the board, the same to all communication mediums. The unique attributes of each medium must be understood and accounted for. Sable, 492 U.S. at 127. Alliance for Community Media v. FCC, 56 F.3d 105, 124 (D.C. Cir. 1995), cert. granted sub. nom., Denver Area Education Telecommunications Consortium v. FCC, 116 S.CT. 471 (1995) ("the constitutionality of indecency regulation in a given medium turns, in part, on the medium's characteristics"); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969). See Conference Report, supra note 30 (discussing Sec. 502, stating "The precise contours of the definition of indecency have varied slightly depending on the communications medium to which it has been applied"). The technical capacity of the medium to achieve the compelling government interest must be considered. Sable, 492 U.S. at 130-31 (stating "[f]or all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that ' 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages."). Regulations which may be constitutional in one medium may not be constitution when applied to another. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S. Ct. 2829 (1989).
Regulation of indecency in the past was found to appropriate given the unique characteristics of the medium. When considering the printed press, regulation of content has largely not been tolerated by the Courts. This changed, however, with broadcast. Due to the "pervasive" nature of the broadcast and the possibility that a listener, in his or her car or home, might stumble upon an offensive broadcast as he or she spins down the dial, restrictions on the broadcast of indecency have been upheld by the Supreme Court. Pacifica v. FCC, 438 U.S. 726 (1978).Again, technology changed with the creation of "dial-a-porn" and, again, the old law was not permitted to be applied to the new medium. The "pervasiveness" of the broadcast medium was seen as irrelevant to dial-a-porn. New restrictions appropriate to the new medium had to be promulgated by the FCC. See Alliance for Community Media, 56 F.3d at 124 (recounting history of indecency law in light of differences in medium; analyzing constitutionality of permitting cable companies to censor lease accessed channels, taking into account unique features of cable).
Many of the FCC governing statutes and regulations implicate First Amendment concerns. Historically, however, no single First Amendment framework has been applicable to all speakers regulated by the FCC. Instead, the level of First Amendment protection afforded to various speakers regulated by the FCC has varried according to the communications medium over which the communication has been carried (i.e., broad cast, common carrier, or cable). For example, while content-based common carrier regulations generally have been reviewed under the traditional First Amendment strict scrutiny standard of review, content based broadcast regulations geerally have been reviewed under intermediate scrutiny or under deferential version of strict scrutiny. In addition, certain ownership restrictions are deemed to be akin to economic regulation and thus are reviewed under the most deferential standard of review, the rational basis test. Each of these standards is addressed in turn below.
It must be noted that the FCC's First Amendment jurisprudence always is subject to reevaluation by the courts and that the analysis provided herein cannot substitute for thorough legal research and analysis. For example, recently, several Justices of the Supreme Court indicated that they would prefer to review restrictions on speech regulated by the FCC on a case-by-vsdr basis, and not by reference to the communications medium over which the speech is carred. Denver Area Educational Telecommunications Consortium, Inv. v. FCC, 116 S.Ct. 2374, 2385 (Beyer, J., plurality opinion with Justices Stevens, O'Connor, Souter joining). Under this new approach, whih has not been approved by a majority of the Supreme Court, certain FCC statutes or regulations that affect speech would be reviewed under a standard that falls somewhere betweeen intermediate and strict scrutiny, requiring that such provisions must "properly address an extremely inportant problem, wihtout inposing, in light of therelevant interestes, an uncecessarily great restriction on speech." Id.
Promote First Amendment
47 USC § 257(b) - purposes of Communications Act include promoting "diversity of media voices"
FCC v National Citizens Committee for Broadcasting, 436 US 774 (1978)
Red Lion Broadcasting Co., Inc. v. FCC, 395 US 367, 386-92 (1969)
"While the government may nevertheless restrict the showing of indecent programs, it may do so only in a manner consistent with the First Amendment. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989)." --Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 471 (1995).
"In attempting to justify the complete ban and criminalization of the indecent commercial telephone communications with adults as well as minors, the federal parties rely on FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), a case in which the Court considered whether the FCC has the power to regulate a radio broadcast that is indecent but not obscene. In an emphatically narrow holding, the Pacifica Court concluded that special treatment of indecent broadcasting was justified. Pacifica is readily distinguishable from these cases, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not " 'intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.' " Pacifica, supra, at 733, 98 S.Ct., at 3032, quoting Pacifica Foundation, 59 FCC2d 892 (1976). The issue of a total ban was not before the Court. 438 U.S., at 750, n. 28, 98 S.Ct., at 3040, n. 28.
The Pacifica opinion also relied on the "unique" attributes of broadcasting, noting that broadcasting is "uniquely pervasive," can intrude on the privacy of the home without prior warning as to program content, and is "uniquely accessible to children, even those too young to read." Id., at 748-749, 98 S.Ct., at 3039-3040." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
Fox v FCC, Docket No 06-1760-ag (2nd Cir. June 4, 2007)
broadcasters have "received the most limited First Amendment protection." FCC v. Pacifica Foundation, 438 U.S. 725, 748 (1978). Indeed, in affirming an FCC order barring radio broadcasts of indecent speech during daytime hours, the Supreme Court in Pacifica appeared to apply the rational basis standard of review . Id at 750 ("The ease with which children may obtain access to broadcast material . . . justified the regulation of otherwise protected expression"); see also Red Lion Broadcasting Co v. FCC, 395 U.S. 367. Generally, however, the courts have reviewed broadcast restrictions under either intermediate scrutiny or under a deferential version of the strict scrutiny test. See FCC v. League of Woman Voters, 468 U.S. 364, 380 (1984) (requiring broadcast provisions to be "narrowly taylored to further a substantial governmental interest"); Action for Children's Television v. FCC, 58 F.3d 654, 657 (D.C. Cir. 1995) (requiring broadcast restrictions to "promote a compelling interest" and be carefully tailored" to further the articulated interest, taking into considertion the "unique context of the broadcast medium"), cert denied, 116 S.Ct. 701 (1996) (sic). The rights of the viewers and listeners are "paramount." Action for Children's Television, 58 F.3d at 558.
The Supreme Court adopted this lesser standard of review for several reasons. First, it ensures that broadcasters use the scarce and public resource of the electromagnetic spectrum in the public interest. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) ("[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcst comparable to the right of every individual to speak, write, or publish."). Second, the lower standard of review recognizes that "a licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain . . . [and that] when he accepts that franchise it is burdened by enforceable public obligations.'" CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (upholding a challenge to the statute (47 U.S.C. s 312(a)(7)) that requires broadcasters to provide reasonable access to individual candidates seeking federal elective office). Third, broadcasting has a "uniquely pervasive presence" in the lives of all Americans and is "uniquely accessible to children," therefore warranting special treatment of this medium. See, Pacifica, 438 U.S. at 748-50
18 USC 1464: This section states "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."
In Re Industry Guidance on the Commission's Case Law Interpreting 18 USC § 1464 and Enforcement Policies Regarding Broadcast Indecency, Policy Statement (April 6, 2001)
Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464, 16 F.C.C.R. 7999 (2001)
"No licensee of a radio or television broadcast station shall broadcast on any day between 6 am and 10 pm any material which is indecent." 47 CFR § 73.3999(b).
See V Chip
FCC v. Fox Broadcasting
613 F.3d 317 (2d Cir. 2010) held that the indecency policy under the forfeiture order was issued is unconstitutionally vague
ABC v FCC (2nd Cir. 2010) (vacating forfeiture order on grounds that FCC v. Fox held that the indecency policy was unconstitutionally vague)
On Feb. 25, 2003, at 9:00 pm, in the Central and Mountain Time zones, the ABC Television Network aired an episode of NYPD Blue that depiced an adult woman's nude buttocks for slightly less than seven seconds. In the episode, Connie McDowell (played by Charlotte Ross), who was recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her nude buttocks are visible. As McDowell turns toward the shower, the side of her buttocks and the side of one of her breasts are visible. While she faces the shower, the camera pans down, again revealing her nude buttocks. Sipowicz's young son, Theo, enters the bathroom and sees McDowell naked from the front. Theo blocks the audience's view of McDowell's nudity. Each character reacts with embarrassment, and Theo leaves the room and apologizes. McDowell, covering her breasts and pubic area, responds, "It's okay. No Problem." According to ABC and ABC Affiliates, the scene was included to portray the awkwardness between a child an his parent's new romantic partner and their difficulties in adjusting to life together.
The FCC received indecency complaints regarding the episode, and in January 2008 the FCC issued a notice of apprent liability for forfeiture to ABC and ABC Affiliates proposing the maximum forfeiture penalty of $27,5000 against each station. In Febraury 2008, the FCC issued a Forfeiture Order, determining that the depiction of the buttocks was indecent and impsing a penalty of $27,5000 on each of forty-four ABS affiliated stations.
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, FCC 06-166 (Nov. 6, 2006) ("In the Remand Order, the FCC reaffirmed its finding that the 2002 and 2003 Billboard Music Award programs were indecent and profane, but reversed its finding against The Early Show. It also dismissed on procedural grounds the complaint against NYPD Blue.")
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 F.C.C.R. 2664 (2006) "In Section III.B of the Omnibus Order, the Commission found four programs—Fox’s broadcast of the 2002 Billboard Music Awards, Fox’s broadcast of the 2003 Billboard Music Awards, various episodes of ABC’s NYPD Blue, and CBS’s The Early Show—indecent and profane under the policy announced in Golden Globes"
Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 4975 (2004) Decision of Commission, reversing Bureau decision, finding any use of the work "fuck" to be inherently sexual, and serving notice on broacasters that any future use would result in fines. Petitions for recon pending without action for two years as of June 2007
Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 18 F.C.C.R. 19859 (2004) ("During NBC’s January 19, 2003, live broadcast of the Golden Globe Awards, musician Bono stated in his acceptance speech “this is really, really, fucking brilliant. Really, really, great.' ... The FCC’s Enforcement Bureau, however, denied the complaints on the basis that the expletive as used in context did not describe sexual or excretory organs or activities and that the utterance was fleeting and isolated.")
Omnibus Order, 21 F.C.C.R. 2664, at ¶ 82 (finding Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons” indecent - occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary “could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives,”)
Saving Private Ryan, 20 F.C.C.R. 4507 (repeated use of "fuck" and "shit" in “Saving Private Ryan,”was neither indecent nor profane.)
With regard to 'indecent' or 'profane' utterances, the First Amendment and the 'no censorship' provision of Section 326 of the Communications Act severely limit any role by the Commission and the courts in enforcing the proscription contained in Section 1464. The Supreme Court's decision in FCC v. Pacifica Foundation, 46 U.S.L.W. 5018 (1978), No. 77-528, decided July 3, 1978, affords this Commission no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station. We intend strictly to observe the narrowness of the Pacifica holding. In this regard, the Commission's opinion, as approved by the Court, relied in part on the repetitive occurrence of the 'indecent' words in question. The opinion of the Court specifically stated that it was not ruling that 'an occasional expletive . . . would justify any sanction . . .' Further, Justice Powell's concurring opinion emphasized the fact that the language there in issue had been 'repeated over and over as a sort of verbal shock treatment.' He specifically distinguished 'the verbal shock treatment [in Pacifica]' from 'the isolated use of a potentially offensive word in the course of a radio broadcast.' -- Application of WGBH Educ. Found., 69 F.C.C.2d 1250, at ¶ 10 (1978) (emphasis added)
For decades broadcasters relied on the FCC's restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent. The agency asserts the same interest in protecting children as it asserted thirty years ago, but until the Golden Globes decision, it had never banned fleeting expletives. While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change. Cf. State Farm, 463 U.S. at 42 ("[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.") (emphasis added). The FCC's decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech. Yet the Remand Order provides no reasoned analysis of the purported "problem" it is seeking to address with its new indecency policy from which this court can conclude that such regulation of speech is reasonable. See, e.g., United States v. Playboy Enter. Group, Inc., 529 U.S. 803, 822-23 (2000) (rejecting indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."); Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994) (remanding for additional fact finding to determine whether speech regulation justified because government had failed to demonstrate "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way"); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1463 (D.C. Cir. 1985) (invalidating FCC regulation because "the Commission has failed entirely to determine whether the evil the rules seek to correct 'is a real or merely a fanciful threat'"); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C. Cir. 1977) ("[A] regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist." (internal quotation marks omitted)). The Commission has similarly failed to explain how its current policy would remedy the purported "problem" or to point to supporting evidence. -- Fox v FCC, Docket No 06-1760-ag, slip 29-30 (2nd Cir. June 4, 2007)
We cannot accept this argument as a reasoned basis justifying the Commission's new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful "first blow" for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the "first blow" theory bears no rational connection to the Commission's actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules.7 For example, although "there is no outright news exemption from our indecency rules," Remand Order, at ¶ 71, the Commission will apparently excuse an expletive when it occurs during a "bona fide news interview," id. at ¶ 72-73 (deferring to CBS's "plausible characterization" of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane). Certainly viewers (including children) watching the live broadcast of The Early Show were "force[d]...to take the 'first blow'" of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and "the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose." The Commission further explained to this court that a broadcast of oral argument in this case, in which the same language used in the Fox broadcasts was repeated multiple times in the courtroom, would "plainly not" be indecent or profane under its standards because of the context in which it occurred. The Commission even conceded that a re-broadcast of precisely the same offending clips from the two Billboard Music Award programs for the purpose of providing background information on this case would not result in any action by the FCC, even though in those circumstances viewers would be subjected to the same "first blow" that resulted from the original airing of this material. Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC's policy if the expletives are "integral" to the work. See Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Televison Network's Presentation of the Film "Saving Private Ryan", 20 F.C.C.R. 4507, at ¶ 14 (2005) ("Saving Private Ryan") (finding numerous expletives uttered during film Saving Private Ryan not indecent or profane because deleting the expletives "would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers"). In all of these scenarios, viewers, including children who may have no understanding of whether expletives are "integral" to a program or whether the interview of a contestant on a reality show is a "bona fide news interview," will have to accept the alleged "first blow" caused by use of these expletives. Thus, the record simply does not support the position that the Commission's new policy was based on its concern with the public's mere exposure to this language on the airwaves.8 The "first blow" theory, therefore, fails to provide the reasoned explanation necessary to justify the FCC’s departure from established precedent.-- Fox v FCC, Docket No 06-1760-ag, slip 25-26 (2nd Cir. June 4, 2007)
The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is "difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions." Remand Order, at ¶ 23. This defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any "sexual or excretory" meaning. Bono's exclamation that his victory at the Golden Globe Awards was "really, really fucking brilliant" is a prime example of a non-literal use of the "F-Word" that has no sexual connotation. See Golden Globes (Bureau Decision), 18 F.C.C.R. 19859, at ¶ 5 ("As a threshold matter, the material aired during the 'Golden Globe Awards' program does not describe or depict sexual and excretory activities and organs . . . . Rather, the performer used the word 'fucking' as an adjective or expletive to emphasize an exclamation."), rev'd by Golden Globes, 19 F.C.C.R. 4975 (2004). Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced "sexual or excretory organs or activities." See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush's remark to British Prime Minister Tony Blair that the United Nations needed to "get Syria to get Hezbollah to stop doing this shit" and Vice President Cheney's widely-reported "Fuck yourself" comment to Senator Patrick Leahy on the floor of the U.S. Senate).
Petition for Clarification or Reconsideration’ of a Citizen’s Complaint against Pacifica Foundation, Station WBAI(FM), N.Y., N.Y., 59 F.C.C. 2d 892 (1976)
"The Court in Pacifica was careful "to emphasize the narrowness of [its] holding." Id., at 750, 98 S.Ct., at 3040." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
General Mobile Radio Service
47 C.F.R. ' 95.181 (1996)
47 C.F.R. ' 97.113(a)(4) (1996).
47 U.S.C. ' 312(a)(6) (citing 18 U.S.C. ' 1304, 1343, 1464)
47 C.F.R. ' 95.413 (1996)
Statute making it unlawful to use any telephone facsimile machine, computer or other device to send unsolicited advertisement to telephone fascimile (FAX) machine was valid content-based restriction on commercial speech; interest in protecting consumers from economic harm resulting from unfair shifting of advertising costs from advertiser to customer was substantial interest directly advanced by statute and restriction was narrowly tailored to serve specific purpose for which it was intended. Destination Ventures, Ltd., v. FCC, 844 F.Supp. 632 (D.Or. 1994), 46 F.3d 54.
47 C.F.R. § 76.701 (1996)
"For purposes of paragraphs (b)-(f) of this section, "indecent programming" is any programming that describes or depicts sexual or excretory activiites or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." 47 C.F.R. ' 76.701(g).
It is now well established that regulation of cable operators implicates both the Free Speech and Free Press clauses of the First Amendment. See, e.g., Turner Broadcasting System, Inc. v. FCC (Turner I ), 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991); City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986). Through "original programming or by exercising editorial discretion over which stations or programs to include in its repertoire," cable programmers and operators "see[k] to communicate messages on a wide variety of topics and in a wide variety of formats." Turner I, 512 U.S. at 636, 114 S.Ct. at 2456 (quoting Preferred Communications, 476 U.S. at 494, 106 S.Ct. at 2037).
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 690-91 (SDFl Nov. 8, 2000)
The Broward County ordinance invidiously impacts a cable operator's ability to participate in the information market. The cable operator, unlike a telephone service, does not sell transmission but instead offers a collection of content. Like a newspaper, a cable operator sells advertising to defray the costs of its service. Advertising allows an operator to keep subscriber rates lower than would otherwise be the case, an attraction in obtaining the critical mass of subscribers necessary to pay for the sizable investment in physical plant. See Affidavit of Thomas Cullen 11, Exhibit I, Plaintiffs Comcast and Advanced Cable's Appendix to Statement of Material Facts in Support of Summary Judgment (Volume II).... The imposition of an equal access provision by operation of the Broward County ordinance both deprives the cable operator of editorial discretion over its programming and harms its ability to market and finance its service, thereby curtailing the flow of information to the public. It distorts and disrupts the integrity of the information market by interfering with the ability of market participants to use different cost structures and economic approaches based upon the inherent advantages and disadvantages of their respective technology.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 693 (SDFl Nov. 8, 2000)
In Turner I, the Supreme Court held that cable operators are generally entitled to the same First Amendment protection as the print media. The standard adopted by the Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), which was grounded on the scarcity of broadcasting frequencies, was held inapplicable to cable. See Turner I, 512 U.S. at 637, 114 S.Ct. at 2456. "[T]he rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation ... does not apply in the context of cable regulation". Id. at 639, 114 S.Ct. at 2457. "[A]pplication of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation." Id.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696 (SDFl Nov. 8, 2000)
Thus far, the Supreme Court has declined to extend the same deferential standard of review afforded broadcast regulations to content-based cable regulations, reasoning that "the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation [e.g., the scarsity of spectrum] . . . does not apply in the context of cable regulation." Turner Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445, 2456 (1994). Although the Supreme Court has not spoken with one voice as to exactly how it will review content-based cable regulations, it appears that the applicable standard of review is a varriant of strict scrutiny, either Justice Breyer's standard that regulations must "properly address an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech" or a more traditional strict scrutiny standard that at a minimum does not ignore "the unique phyical characteristics of cable transmission." Denver Area, 116 S.Ct. at 2385 (Breyer, J. Plurality opinion) & at 2410 (Kennedy, J., concuring in part and dissenting in part); Turner, 114 S.Ct. at 2457.
In contract to the heightened scrutiny afforded content-based cable regulations, non=content based cable regulations are subjected to intermediate scrutniy. Turner, 114 S.Ct. at 2469. for example, in Turner, the Supreme Court held that the Commission's must-carry rules, which require cable systems to carry local broadcast stations, were constitutional because they "further[ed] an important or substantial government interest . . . [and] the restruction . . . [was] no greater than is essential." Id.
Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385 § 2(b)(2) - policy to "promote the availability to the public of a diversity of views and information through cable television and other video distribution media"
Turner Boradcasting System, Inc. v. FCC, 117 S.Ct. 1174 (1997) in which the Supreme Court, applying intermediate scrutiny, upheld a congressional statute compelling cable companies to carry local broadcast television stations
"Federal policy ... has long favored preserving a multiplicity of broadcast outlets of whether the donduct that threatens it is motivated by anticompetitive animus or rises to the level of an antitrust violation."
Circulation - conduit
The Supreme Court, however, has repeatedly held that "[l]iberty of circulating is as essential to [freedom of the press] as liberty of publishing; indeed, without the circulation, the publication would be of little value." Ex Parte Jackson, 96 U.S. 727, 733, 6 Otto 727, 24 L.Ed. 877 (1877); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 768, 108 S.Ct. 2138, 2150, 100 L.Ed.2d 771 (1988) ("The actual 'activity' at issue here [placement of newsracks] is the circulation of newspapers, which is constitutionally protected."); Lovell v. City of Griffin, Ga., 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938) ("The ordinances [prohibiting distribution of circulars] cannot be saved because it relates to distribution and not to publication."). Liberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable. "The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Id.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 691 (SDFl Nov. 8, 2000)
Content and conduit Connected
In arguing that the conduit or transmission capability of speech can be separated from its content, the County ignores the relationship between the two. Although all would agree that the First Amendment protects freedom of thought and expression, it is equally true that thought is nonverbal and necessarily requires speech to be communicated. Moreover, technology extends the senses, permitting faster communication beyond reach of the human voice. The printed word brought uniformity and repeatability and permitted widespread circulation through books and then newspapers. The increasing speed of information gathering and publication also has created new forms of arranging and circulating information affecting not only the physical appearance of the press but also the prose of those contributing to it. For example, movies, by speeding up the mechanical, moved us from sequence to configuration and structure while the immediacy of radio and television has eliminated distance and time. In short, content and technology are intertwined in ways which make analytical separability difficult and perhaps unwise.
The present case involves broadband technology. Broadband cable Internet service brings instant two-way communication that can accommodate tremendous amounts of information in video, audio, and printed form. Undoubtedly, it will affect our economy and culture, as have the other technologies for human expression. As Marshall McLuhan said over thirty years ago, to a substantial extent, "the medium is the message." Marshall McLuhan, Understanding Media: The Extension of Man, McGraw-Hill (1964). If so, the question then becomes, can government regulate the technology of expression without also changing its meaning?
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 692 (SDFl Nov. 8, 2000)
Discrimination Against a Conduit
The Broward County ordinance operates to impose a significant constraint and economic burden directly on a cable operator's means and methodology of expression. The ordinance singles out cable operators from all other speakers and discriminates further against those cable operators who choose to provide Internet content. The ordinance has no application to wireless, satellite, or telephone transmission or other providers of Internet service. In these respects, the ordinance operates in much the same manner as the use tax held to violate the First Amendment in Minneapolis Star and Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). But see Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991).
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 692-93 (SDFl Nov. 8, 2000)
Since Broward County's access regulation is only triggered by a cable operator's decision to offer an Internet information channel, it is very similar to the Florida law which led to the Supreme Court's decision in Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). That case involved a Florida law which provided for a right of reply to every attack upon a candidate for office which appeared within the newspaper. The reply was required to be in as conspicuous a place and in the same kind of type as the charges that prompted the reply, provided it could not take up more space than the charge which prompted the reply. The argument of the proponents of that measure are echoed by the County's arguments here--that government has an obligation to ensure that a wide variety of views reach the public. It was argued that concentration of ownership and the expense of entry into publishing had resulted in a loss of any ability by the public to respond or contribute in any meaningful way to debate on issues. One newspaper towns had become the rule, said access proponents, with effective competition operating in only four percent of large cities.
The Supreme Court unanimously rejected these arguments finding that an enforceable right of access brings about a direct confrontation with the express provisions of the First Amendment. See id. at 254, 94 S.Ct. at 2838. As the Tornillo Court explained:
A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper, and treatment of public issues and public officials--whether fair or unfair-- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how government regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved this time.
Id. at 258, 94 S.Ct. at 2840. It is ironic that a technology, which is permitting citizens greater ease of access to channels of communication than has existed at any time throughout history, is being subjected to the same arguments rejected by the Supreme Court in Tornillo. Broward County's ordinance intrudes upon the ability of the cable operator to choose the content of the cable system and imposes a cost in time and materials in order to make available the space that may be demanded. The result has been that cable operators have not provided Internet service in unincorporated Broward County. Compelled access like that ordered by the Broward County ordinance both penalizes expression and forces the cable operators to alter their content to conform to an agenda they do not set. See generally Pacific Gas and Elec. Co. v. Public Utilities Com'n of California, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986).
-- Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 694 (SDFl Nov. 8, 2000)
The First Amendent's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.
-- Turner Broadcasting System, Inc. v. FCC, 512 US 622, 657 (1994)
Nevertheless, in Turner I, the Court upheld the must-carry provisions adopted by the FCC which require carriage of local broadcast stations on cable systems. The Court determined that the applicable standard to evaluate the must-carry provisions was the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. However, the reasons given by the Court for applying intermediate rather than strict scrutiny do not apply in this case. - Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696 (SDFl Nov. 8, 2000)
Must Carry =/= Open Access
Nevertheless, in Turner I, the Court upheld the must-carry provisions adopted by the FCC which require carriage of local broadcast stations on cable systems. The Court determined that the applicable standard to evaluate the must-carry provisions was the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. However, the reasons given by the Court for applying intermediate rather than strict scrutiny do not apply in this case.
First, unlike the must-carry rules which applied to virtually all cable operators in the country, the Broward County ordinance applies only to the select few that seek to operate broadband Internet service. This ordinance is targeted only at the Plaintiffs, and it is likely to result in the elimination of broadband cable Internet service in unincorporated Broward County. The ordinance was adopted at the behest of a telephone company seeking to eliminate or hamper a competitor.
Moreover, differential treatment is not justified by some special characteristic of the medium being regulated. In Turner I, the Supreme Court found that when an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck or gatekeeper control over most (if not all) of the television programming that is channeled into the subscriber's home. 512 U.S. at 656, 114 S.Ct. at 2466. According to the Court, cable operators possessed "bottleneck monopoly" power that threatened the "viability of broadcast television." Id. at 661, 114 S.Ct. at 2468. This was the reason the Court found Tornillo not to control the must-carry provisions.
Cable operators control no bottleneck monopoly over access to the Internet. Today, most customers reach the Internet by telephone. Those who obtain access through cable can use the Internet to reach any Internet information provider. After inquiry, the FCC has concluded that it does not foresee monopoly, or even duopoly in broadband Internet services. See Advanced Services Report. The "bottleneck" theory offers no justification for less than heightened scrutiny of the Broward County ordinance.
Finally, the Court found that the must-carry regulations did not force the cable operators to alter their own message or create a risk that a cable viewer might assume that ideas or messages of the broadcaster were endorsed by the cable operator. The Court pointed out that cable had a long history of serving as a conduit for broadcast signals and that broadcasters were required by FCC regulation to identify themselves at least once every hour. The Court stated that no aspect of must-carry would cause a cable operator to avoid controversy and by so doing diminish the free flow of information and ideas. See Turner I, 512 U.S. at 655-56, 114 S.Ct. at 2465-66.
In contrast, there is no history of cable operators serving as a conduit for Internet service providers. During oral argument, counsel for Broward County estimated that there may be around 5,000 Internet service providers at present, and unlike broadcasters, there is no limit on the number that might demand access. Nor is there any reason to expect that Internet information services granted access to the cable system would not be offensive to the operator and its subscribers. The cable operator under the ordinance would be required to adopt technology which would allow its system to identify each subscriber's choice of Internet service provider so that equal access could be provided and accommodate the demands of the service providers, all in contravention of existing contracts. The Broward County ordinance, unlike the must-carry regulations of the FCC, threaten to diminish the free flow of information and ideas.
For example, the Internet is becoming a primary platform by which white supremacist groups and other purveyors of hate such as the White Aryan Resistance and the World Church of the Creator reach out to their small but dangerous constituency. The Southern Poverty Law Center estimates there are 350 to 500 hate sites on the Internet, some offering multi-page content with audio and video. To these groups, the Internet offers a place without governance or accountability. See, HATE.com, Extremists on the Internet, an HBO documentary by HBO and the Southern Poverty Law Center (http://www.hbo.com/ hate).
For these reasons, I believe this case falls within the rule of Tornillo, Minneapolis Star and TribuneCo., and Pacific Gas and Elec. Co. and therefore strict scrutiny is required. However, if I am mistaken, the ordinance fails content-neutral scrutiny as well.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696-97 (SDFl Nov. 8, 2000)
Cable Open Access
See Cable Open Access Notes.; Forced Access Notes.
Harold Feld, Whose Line is it Anyway? The First Amendment and Cable Open Access, 8 CommLaw Conspectus 23 (2000)
David Wolitz, Open Access and the First Amendment: A Critique of Comcast Cablevision of Broward County, Inc. v. Broward County, 4 YALE SYMP. L. & TECH 6 (2001)
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685 (SDFl Nov. 8, 2000) News articles on the case
AT&T Corp. v. City of Portland, 43 F. Supp. 2d 1146, 1154 (D. Ore. 1999), reversed on other grounds, 216 F.3d 871 (9th Cir. 2000) News articles on the case
47 C.F.R. ' 64.201
The ability of the phone company to control the audience which received dial-a-porn was fundamental to the Sable decision. Sable, 492 U.S. at 125 (stating "Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve.").
"In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it *128 medium requires the listener to take affirmative steps to receive the communication. There is no "captive audience" problem here; callers will generally not be unwilling listeners. The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
Content-based restrictions on telephone communications are the subject of strict scrutiny. The rationale for not applying the deferential broadcast standard of review to telephone communications is that telephone communications differ from broadcast communications in that a user of a telephone must take affirmative steps to receive telephone communications from a particular speaker while a user of a television or radio may come across unwelcome communications by a simple turn of the dial. Sable Communications v. California, Inc. v. FCC, 492 U.S. 115, 126-29 (1989) (invalidating a federal statute that denied adults access to indecent telephone messages). Thus, content-based regulations relating to telephone communications must "promote a compelling interest" and must be "the least restrictive means to further the articulated interest." Id.
Direct Broadcast Satellite Services
Regulations impacting speech on direct broadcast satellite (DBS) services (which are technically not "broadcast" services) are subject to the "same relaxed standard of scrutiny that the court has applied to the traditional broadcast media." Time Warner Entertainment Co. V. FCC, No. 93-5349, slip op. at 29 (D.C. Cir. August 30, 1996) (holding that mandatory set aside of DBS channels for educations use is constitutional because it is "'a reasonable means of promoting the public interest in diversified mass communications'") (citation omitted). the opinion in Time Warner also illustrates the general rule of thumb that FCC statutes or regulations that promote speech (as opposed to restricting speech) are more likely to pass constitutional muster. Id., slip op. at 33.
© Cybertelecom ::
Traditionally, Congress and the Commission have imposed various cross-ownership restrictions that prohibit owners of certain communications companies from owning interests in other types of communications companies (or that prohibit communications companies from providing two types of services within a certain geographic area). Courts generally consider these type of restrictions to be non-conent based restrictions and therefore review these types of restrictions under intermediate scrutiny. See, e.g., US West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 1995) (invalidating under intermediate scrutiny the provision prohibiting telephone companies from providing video programming to subscribers within their service areas), vacated as moot, 116 S.Ct. 1037 (1996); Chesapeake and Potomac Telephone Co. v. United States, 42 F.3d 181, 192 (4th cir. 1994) (same), vacated as moot, 116 S.Ct. 1036 (1996). In contrast, the rational basis test is applicable where cross-ownership rules implicate broadcast concerns (e.g., scarcity) or where certain restrictions are the equivalent of economic regulation. See FCC v. National. citizens Committee for Broadcasting, 436 U.S. 775, 802 (1978) (holding newspaper-broadcast cross-ownership regulations to be valid under the First Amendment as a "reasonable means of promoting the public interest in diversified mass communications"); Associated Press v. United States, 326 U.S. 1, 20 (1945) ("The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity"); Lorain Journal Co. V. United States, 342 U.S. 143 (1951).