RECOMMENDATION 35

Part: 
Three
Chapter: 
2

The Federal Communications Commission should use its full regulatory powers and impose appropriate sanctions against cable and satellite television programmers who transmit obscene programs

The growth of the cable television industry over the last few years has been remarkable. Approximately forty percent of all homes in the country now have access to cable or satellite television, and 250,000 homes are being connected with the services every month.[357] There are currently 6,500 cable television systems serving forty million households.[358]

The concerns over the content of some of cable television programming have increased as the cable industry has grown. Feature film presentations have been one of cable's strongest drawing cards and an increasing number of those films shown on cable fall under the MPAA rating "R".[359] These films depict nudity, sexual themes, simulated sex, graphic violence, or offensive language.[360] While a minor under the age of seventeen cannot be admitted into a theatre to view an "R" rated film without an accompanying parent or guardian, the same films are available to a viewer of any age over cable. Some of the premium channels offer movies that are unrated by the MPAA and go far beyond those in the "R" category and would be generally considered as "X-rated".

These films are sometimes the same films shown in pornography movie theatres and include films which federal and state courts have found to be obscene.[361] For example, the movie, "The Opening of Misty Beethoven" appeared over satellite television in Phoenix, Arizona, in 1981.[362] This film was previously found to be legally obscene by the Supreme Court of Alabama.[363]

These more sexually explicit movies earn a much larger profit for the cable channel.[364] It is less expensive for the cable channel to offer these films than it is for them to acquire and show better known but non-sexually explicit feature films.

The cable industry minimizes any problems associated with sexually explicit cable programs. Brenda Fox of the National Cable Television Association (NCTA) testified in Los Angeles that there are only 700,000 subscribers to the "adult" programming offered on cable.[365] Ms.Fox also testified that the industry has taken what it regards as adequate steps to protect minors from viewing sexually explicit programs. These precautions include lockboxes so parents can control channel selection, program guides and notices, transmission of "adult" programs through scrambled signals and the restriction of this programming to later evening hours.[366] The number of hours of sexually explicit programming, however, continues to escalate. There is no reason that a cable television programmer or operator could not be prosecuted under existing federal and state obscenity laws by the United States Attorneys and State or local prosecutors for transmitting a program that meets the Miller test for obscenity.

As the Supreme Court held in Kaplan v. California, "[W]hen the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression."[367]

In HBO, Inc. v. Wilkinson, the United States District Court in Utah found the Miller standard applicable to cable television. While a Miami, Florida, ordinance prohibiting indecent cable telecasts was found to be unconstitutional, the portion of the ordinance that proscribed obscene programming was not challenged.[368]

The Cable Communications Policy Act of 1984[369] attempts to provide another avenue for the prosecution of obscenity shown over cable television. The Act provides, in part, that, "Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both."[370]

This portion of the section may be in conflict with two other sections of the Act governing editorial control of programming by cable operators. Sections 531(e) of Title 47 provides that:

 

Subject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section.

 

Section 544(d) provides in part:

  1. Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States.
  2. (A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (emphasis added)

Section 544(d) seems to contemplate the operator providing obscene programming while Section 559 makes it a crime to do so.[371]

Proposed legislation should be drafted to enable United States Attorneys to prosecute violators under the criminal code and alleviate the possible conflict under the Cable Communications Policy Act.

The FCC has shown no interest in taking action regarding the contents of cable programming. Thomas Herwitz, legal assistant to FCC Chairman Mark Fowler, stated the Commission's views at the Los Angeles hearing regarding cable programming. The position the FCC has taken has been to advocate regulation for cable similar to that for the print medium.[372]

The FCC maintains that the cable subscription services can be controlled adequately within the home to assure that minors do not have access. The FCC position is that since the individual can act as his or her own gatekeeper and preclude those signals not desired to be watched, the government has no compelling interest in further intrusion.[373]

The posture adopted by the FCC has enabled cable television to occupy a status afforded no other medium. The policy considerations that support government regulation of broadcasting to serve the public interest also apply to government regulation of cable television. As the United States Court of Appeals for the District of Columbia has ruled,

 

[We] do require that at a minimum the [FCC], in developing its cable television regulations, demonstrate that the objectives to be achieved of regulating cable television are also objectives for which the commission could legitimately regulate the broadcast media.[374]

 

When 250,000 homes are being connected with cable every month, it is readily apparent that cable television's presence is, in fact, as pervasive as that of the broadcast media.

Parents may make the initial decision to subscribe to a cable service with a variety of program choices. The fact that a parent makes a conscious choice to engage the cable service does not impair the accessibility of the selections to minors in the home. Once cable enters the home it becomes the same in this regard as over the air broadcasts. It comes through the same television set and is usually accessed by the same controls. The FCC has recognized that,

 

While particular stations or programs are oriented to specific audiences, the fact is that by its very nature, thousands of others not within this 'intended' audience may also see and hear portions of the broadcast.[375]

 

This rationale is equally applicable to cable and satellite television programs. In many homes, particularly single parent homes or homes where both parents work, close supervision and screening of the selection of television programs in reality may be either minimal or non-existent.

The cable television industry advocates lockboxes as a means of parental control over the programs viewed by children.[376] In their brief before the Supreme Court in FCC v. Pacifica, the Pacifica Foundation specifically raised the issue of lockbox controls. They contended that,

 

... the material to which children are exposed on radio and television may be assumed to be subject to parental supervision to a far greater extent than much of the material to which children are likely to be exposed in other media. And, according to Broadcasting magazine, technology is now prepared to provide parents with a device which will permit them to "program" their home television set in advance so that it will only receive material selected by the parent, even in the parent's absence. Broadcasting, February 27, 1978, at 83.[377]

 

The addendum to the Pacifica Foundation's brief included a description and photograph of a lockbox device called a "Video Proctor" which is capable of being programmed by a parent to block out any VHF, UHF, cable, or pay television stations.[378] The Supreme Court was obviously unimpressed by the "lockbox" argument and upheld the FCC's authority to regulate broadcast content. Therefore, the availability of lockboxes does not prevent the FCC from regulating obscenity on radio and broadcast television. A lockbox performs the same function whether used to block out a broadcast or cable station. There is no reason why the availability of lockboxes should justify the FCC's failure to regulate obscene cable or satellite programming.

The availability of program guides is also advanced as a means of parental control. However, program guides are also readily available for broadcast television programs in publications ranging from TV Guide to the daily newspaper. Programs guides offer no more protection in the context of cable and satellite television than they do in the realm of broadcast television.

While sexually explicit material may be transmitted by scrambled signals, this method is far from foolproof.

For two weeks in November of 1985, Tampa, Florida, residents received all of the "adult" channels whether they subscribed or not. This phenomenon apparently occurred because of a technological anomaly that was triggered by certain weather conditions.[379]

In Colorado Springs, Colorado, the Playboy Channel "slipped through an electronic loophole" and supplemented a "Rin Tin Tin" movie on the Disney Channel.[380] According to a Naples, Florida, resident, "adult" channels, even though scrambled, can still be heard and sometimes seen clearly enough to be watched.[381]

Finally, controls such as lockboxes, program guides, and scrambling are all based on the premise that consenting adults are entitled to observe what they want to. In Paris Adult Theatre I v. Slaton,[382] the United States Supreme Court held that obscene materials do not acquire constitutional immunity from state regulation simply because they are exhibited to consenting adults only.[383]

The time is long overdue for the FCC to take an active role in enforcing the laws and regulations against obscene cable programming.

Notes

  1. Citizens for Decency Through Law, Memorandum (Jan., 1985).
  2. Los Angeles Hearing, Vol. I, Brenda Fox, p. 284; Letter from James P. Mooney to Henry E. Hudson (May 2, 1986).
  3. See, Cable Pornography: Problems and Solutions, Citizens for Decency Through Law, p. 2. (Jan. 1985)
  4. Los Angeles Hearing, Vol. II, Jack Valenti, p. 55k.
  5. Los Angeles Hearing, Vol. II, James J. Clancy, p. 309; Citizens for Decency Through Law, Memorandum, pp. 2-3 (Jan. 1985).
  6. Los Angeles Hearing, Vol. II, James Clancy, p. 310.
  7. Trans-Lux Theatre v. People ex rel. Sweeton, 366 So. 2d, p. 710 (Ala. 1979).
  8. Citizens for Decency Through Law, Memorandum, pp. 2-3 (Jan. 1985).
  9. Los Angeles Hearing, Vol. I, Brenda Fox, p. 295.
  10. Id., pp. 297-88.
  11. 413 U.S., pp. 115, 118-19.
  12. Cruz v. Ferre, 755 F.2d, pp. 1415, 1418 (11th Cir. 1985).
  13. 47 U.S.C. S559.
  14. Id.
  15. Senate Bill 1090 sponsored by Senator Jesse Helms (R-NC) would place a specific prohibition against obscene cable programming in section 1464 of Title 18 of the United States Code. The Helms bill provides in part:
  16.      S1464. Distributing obscene material by radio or television "(a) Whoever utters any obscene, indecent, or profane material by means of radio or television, including cable television, shall be fined not more than $50,000 or imprisoned not more than two years, or both. (b) As used in this section, the term 'distributes' means to send, transmit, retransmit, telecast, broadcast, or cablecast, including by wire or satellite, or produce or provide such material for distribution.

  17. Los Angeles Hearing, Vol. I, Thomas Herwitz, p. 347.
  18. Id., p. 348.
  19. HBO v. FCC; 567 F.2d 9, 34 (D.C. Cir. 1977).
  20. In Re, WUHY-FM, 24 FCC 2d 408(1970).
  21. Los Angeles Hearing, Vol. I, Brenda Fox, pp. 287-88.
  22. Brief Appelle, FCC v. Pacifica Foundation, 438 U.S., (1978), p. 726.
  23. Addendum to Brief Appelle, FCC v. Pacifica Foundation, 438 U.S., (1978), p. 726.
  24. Tampa Tribune, Nov. 8, 1985.
  25. The Daily Sentinel, Aug. 13, 1984.
  26. Statement by Rachel Sturdivant, Naples, Florida, submitted by Florida Coalition for Clean Cable.
  27. 413 U.S., (1973), p. 49.
  28. Id., p. 57.