Distribution

Part: 
Four
Chapter: 
8

An analysis of the various forms of television transmission discloses that most of the sexually explicit programs appear on "pay television." This programming includes movies that have been given an "R" rating by the Motion Picture Association of America (M.P.A.A.) and self-designated "triple X" films.[1943] Movies in the "R" category may depict violence, nudity, or sexuality, and contain sexually explicit or profane language.[1944] Unedited programs with these ratings are generally not shown over regular broadcast television, therefore, cable and satellite television programs often contain more sexually explicit scenes than those shown over broadcast television. The difference in fare offered over regular broadcast television and cable and satellite television is due in part to the different legal restriction placed on each. Under current law, regular broadcast television cannot offer either indecent or obscene programs. Cable and satellite programs cannot offer obscene programs, but have been permitted to show material that would meet the criteria for indecency.

Nevertheless, a significant amount of material appears on network television that qualifies as the type of sexual violence that the Commission has found to be the most harmful form of pornography. Although the sexually violent material aired on network television is probably never legally obscene the covering of breasts and genitals does not render the material any less harmful.

The Commission also recognizes that the nonviolent sexual content of network television is offensive to many Americans. Sexually suggestive and provocative attire and performances, sexual humor and innuendo, and themes of adultery, fornication, prostitution, sexual deviation, and sexual abuse are all prevalent in broadcast television and treated with varying degrees of sensitivity.

Channels which carry "R" rated programming reach in excess of 14.5 million homes over sixty-nine hundred cable and SMATV systems.[1945] Instances have been reported where movies represented as having an "R" rating were actually unrated films or even milder versions of "X" rated movies shown in "adults only" pornographic theatres throughout the country.[1946] In addition to the sexual activity, the violence depicted in "R" rated movies can also be very explicit. Many times the violence depicted is of a sexual nature.

Other "pay television" channels carry programming that is exclusively "adult oriented" or sexually explicit.[1947] One such channel began in December of 1980 and currently has over seven hundred thousand subscribers over five hundred-eighty cable television systems.[1948] The channel's sexually explicit programs are shown during the hours of 8:00 p.m. and 6:00 a.m. In addition to "R" rated movies, the channel programming includes original adult programs and unrated movies.[1949] For example, this channel has shown a version of the movie "The Opening of Misty Beethoven," which, in at least one version, has been declared legally obscene.[1950]

In addition to this channel, there are two satellite delivered networks which distribute sexually oriented programs to cable and satellite systems. One of the networks began operations in January of 1985 and delivers sexually explicit movies over both cable and satellite television. Its programs are shown between 11:00 p.m. and 4:00 a.m. over six cable systems.[1951]

Another network shows "triple X," unedited adult programming.[1952] A "triple X" rating is attached by the movie producer and generally covers the same material as the "X" rating but is meant to connote very explicit fare.[1953] This network has been in existence sine 1983 and its programs are shown to 26,400 subscribers over eleven cable and satellite systems.[1954]

There are two other potential sources of sexually explicit programming over cable: local origination and access channels. Cable industry representative Brenda Fox, testified before the Commission that the National Cable Television Association (NCTA) knows of only one system that locally originates "X" rated movies on a pay-per-view basis.[1955] However, she recognized that there may be other systems that locally originate sexually oriented programs on a per-channel or per-program basis.[1956]

In the area of leased access channels, Ms. Fox stated that the cable operators have no editorial control over the lessees' programming.[1957] For example, pursuant to federal, state and local laws, Manhattan cable is required to set aside a number of channels for use by the public on a first-come, first-served basis.[1958] The cable operator must offer the "access" channels to all applicants on a nondiscriminatory basis.[1959] This requirement has resulted in late night sexually explicit programs which are available to all cable subscribers.[1960] One program, Midnight Blue, shows sexually explicit fare over the Manhattan cable television system owned by Time, Inc. Midnight Blue is produced by Al Goldstein, publisher of Screw magazine.[1961] Ralph P. Davidson, Chairman of the Board of Time, Inc., addressed the Commission:

"Midnight Blue:" Although Midnight Blue appears on Manhattan Cable Television, a subsidiary of Time, Inc., we would like the record to be clear and unambiguous-Midnight Blue is not now nor has it ever been a program of Manhattan Cable. It is a program created locally by an unaffiliated third party which is carried on one of Manhattan Cable's commercial "access" channels.

There should be no misunderstanding-Manhattan Cable would not carry Midnight Blue in the absence of state, local and federal requirements that it do so. Manhattan Cable is required by federal, state and local law to set aside a number of channels for use by the public on a first-come, first-served basis. Further, Manhattan Cable is prevented by law from exercising any editorial control over the content of commercial access programming, unless such programming is legally "obscene." The current obscenity law in New York is based on the "community standards" criterion set forth by the United States Supreme Court in Miller. It should be noted that Manhattan Cable operates in a community (the southern half of Manhattan) which is generally regarded as among the most tolerant in the country of adult material.

As you are undoubtedly aware, Section 612(h) of the Cable Communications Policy Act of 1984 imposes responsibility for policing the content of commercial access programming on the franchising authority, which in the case of Midnight Blue is New York City. Time Inc., would welcome any Commission recommendations that would enable cable operators to exercise full editorial discretion over such access programming. We can assure you that, if this were done, Midnight Blue would be removed from Manhattan Cable.[1962]

As mentioned above, in addition to the cable-transmitted pay television channels, "X" rated and other sexually explicit movies are also available on direct satellite channels. Some of the "X" rated movies shown over satellite television[1963] include "The Opening of Misty Beethoven,"[1964] "Sex Wish," "Easy," "Talk Dirty to Me," "Vista Valley PTA," "Insatiable," "Taboo," "Insatiable II," and "The Devil in Miss Jones."[1965] Although citizen complaints about obscene programming have been filed with the Federal Communication Commission, no action has yet been taken to regulate this programming.[1966]

Cable television operators have taken some precautions regarding the showing of sexually explicit programs.[1967] Some cable programmers and operators offer detailed program guides giving specific information about the content of upcoming programs.[1968] Some provide on-screen notices or warnings before sexually explicit programs are shown.[1969] Most operators limit such programming to the late evening hours and transmit the material in a scrambled mode to ensure against inadvertent reception by nonsubscribers.[1970] Finally, all cable systems are required by federal law[1971] to provide lockboxes, upon request, for either lease or sale. This device enables a subscriber to lock out a particular channel or channels during certain periods.[1972]

Notes

  1. Id., pp. 285, 306-X; Los Angeles Hearing, Vol. II, Charles Dawson, p. 173.
  2. Los Angeles Hearing, Vol. II, Jack Valenti, p. 55EE; theater goers under seventeen must be accompanied by a parent or guardian.
  3. Los Angeles Hearing, Vol. I, Brenda Fox, p. 289.
  4. Citizens for Decency Through Law, Cable Pornography: Problems &, Solutions 2(Jan. 1985).
  5. Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-Y.
  6. Id.
  7. Id.
  8. Los Angeles Hearing, Vol. I, James Clancy, p. 345-I. See, Trans-Lux Theater v. People ex rel. Sweeton 366 So. 2d 710 (Ala. 1979) (finding "The Opening of Misty Beethoven" to be obscene).
  9. Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-Z.
  10. Los Angeles Hearing, Vol. II, Charles Dawson, p. 173.
  11. Los Angeles Hearing, Vol. II, Jack Valenti, pp. 12-13.
  12. Los Angeles Hearing, Vol. I, Brenda Fox. p. 306-Z.
  13. Los Angeles Hearing, Vol. I, Brenda Fox. p. 306-Z.
  14. Id.
  15. Id., p. 306-AA.
  16. Letter from Ralph P. Davidson, Chairman of the Board, Time, Inc. to Alan E. Sears, Executive Director, Attorney General's Commission on Pornography, (Mar. 14, 1986), pp. 3-4.
  17. Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-AA.
  18. Id.
  19. Los Angeles Hearing, Vol. II, Al Goldstein, p. 263. While the NCTA believes that Midnight Blue is an isolated case, there is no guarantee that a similar situation will not occur in other cable systems.
  20. Letter from Ralph P. Davidson, Chairman of the Board, Time, Inc., to Alan E. Sears, (Mar. 14, 1986), pp. 3-4.
  21. See, Film World, X-Rated Movie Handbook, (1986) Vol. 2, No. 8.
  22. See, Trans-Lux Theatre v. People ex rel. Sweeton, 366 So. 2d 710(Ala. 1979) (this movie was found legally obscene).
  23. Los Angeles Hearing, Vol. I, James Clancy, p. 345-H.
  24. Id., p. 314.
  25. Los Angeles Hearing, Vol. I, Brenda Fox, p. 287.
  26. Id.
  27. Id.
  28. Id.
  29. 47 U.S.C. S544 (d)(2)(A).
  30. Los Angeles Hearing, Vol. I, Brenda Fox, pp. 287-88.