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Communication Law Keyed to Benjamin, 2nd Ed.
Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission
Citation:
518 U.S. 727 (1996)Facts
Cable television systems deliver programming from various sources, including retransmitted broadcast stations, purchased programming, operator-created programming, and access channels. Federal law requires cable operators to set aside “leased access channels” for commercial use by unaffiliated programmers and permits local governments to require “public access channels” for public, educational, or governmental use. Prior to 1992, cable operators were prohibited from exercising any editorial control over content on these channels.
In 1992, Congress enacted three provisions to address concerns about sexually explicit programming on these channels. Section 10(a) permitted cable operators to enforce a policy prohibiting programming that the operator reasonably believes depicts sexual activities or organs in a patently offensive manner on leased access channels. Section 10(b) required operators to segregate and block such programming on a single channel, requiring written subscriber requests for access. Section 10(c) enabled operators to prohibit such programming on public access channels.
The FCC implemented regulations defining the material at issue as descriptions or depictions of “sexual or excretory activities or organs in a patently offensive manner” as measured by the cable viewing community. Petitioners challenged these provisions as violations of the First Amendment.
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