A Fear of Commitment: The Supreme Court's Refusal to Pronounce a First Amendment Standard for Cable Television in Denver Area Educational Telecommunications Consortium, Inc. V. FCC

Article excerpt

Since its inception in the 1950s,1 the cable television industry has expanded tremendously and now serves almost sixty million subscribers.2 Congress began regulating the industry by applying extant communications legislation before the first cable television system was ever installed.3 Eventually, however, laws specifically dealing with the cable industry were implemented.4 Judicial review of these laws was usually confined to deciding the scope of the Federal Communication Commission's ("FCC" or "Commission") regulatory authority over the cable industry.5 With the passage of the Cable Television Consumer Protection and Competition Act of 19926 ("1992 Cable Act"), Congress has provided the judiciary with an opportunity to expand upon and clarify the scope of cable television jurisprudence.

Among the Act's provisions is section ten, which vests cable operators,7 rather than the FCC, with the power to refuse carriage of leased access8 or public access9 programming that the operator believes to be excessively sexually explicit or indecent.10 Congress enacted this section in an effort to prevent children from viewing, on cable television, the same type of sexually explicit programming that had previously been barred from network (or free) television.11 Specifically, Congress gave cable operators the power to restrict the content of some of the programs carried on access channels, a power which may have significant First Amendment ramifications.12

Heretofore, the First Amendment implications of cable television regulation had only received marginal attention from the judiciary.13 Prior to 1979, federal courts had only tangentially confronted the potential First Amendment issues.14 In 1979, the Supreme Court for the first time addressed the possible First Amendment implications of such regulations in FCC u. Midwest Video Corp.15 by noting that such claims were "not frivolous."16 Following the Supreme Court's pronouncement, lower courts began to directly confront First Amendment issues raised by the cable regulations.17

In analyzing the constitutionality of the regulations, courts first had to determine the appropriate standard of review.18 Despite several opportunities to do so, the Supreme Court consistently failed to pronounce a definitive standard applicable to the cable industry.19 This lack of guidance has resulted in skirmishing among the lower courts for the appropriate constitutional status of governmental regulation of cable television and its effects on the First Amendment.20 A resolution of this matter appeared to be on the horizon in 1994, when the Court in Turner Broadcasting Systems, Inc. u. FCC21 held that an intermediate level of scrutiny was appropriate for the content-neutral "mustcarry"22 regulations of the 1992 Cable Act.23 Recently, however, in Denver Area Educational Telecommunications Consortium, Inc. v. FCC,24 the Supreme Court rejected the opportunity to reendorse this standard and retreated to its earlier reluctance to announce a First Amendment standard. The Court expressly refused to decide the issue and narrowly decided the specific claims before the Court.25

In Denver Area, a group of cable television "access" programmers and organizations of cable television watchers petitioned for judicial review of FCC orders implementing section 10 of the 1992 Cable Act.26 The group claimed that the three provisions of section 10 and the FCC regulations implementing them violated the First Amendment because the provisions restricted the content of leased access channels by permitting cable operators to prohibit programming that they considered indecent.27 A panel of the Court of Appeals for the District of Columbia agreed with petitioners and held that sections 10(a) and 10(c) were inconsistent with the First Amendment.28 The constitutionality of section 10(b) was remanded to the FCC in light of the invalidity of the other two provisions.29 Upon hearing the case en banc, however, the Court of Appeals reversed, finding all three statutory provisions constitutional. …