Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996)

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OCTOBER TERM, 1995

Syllabus

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 95-124. Argued February 21, 1996—Decided June 28, 1996*

These cases involve three sections of the Cable Television Consumer Protection and Competition Act of 1992 (Act), as implemented by Federal Communications Commission (FCC) regulations. Both 10(a) of the Act—which applies to "leased access channels" reserved under federal law for commercial lease by parties unaffiliated with the cable television system operator—and 10(c)—which regulates "public access channels" required by local governments for public, educational, and governmental programming—essentially permit the operator to allow or prohibit "programming" that it "reasonably believes . . . depicts sexual . . . activities or organs in a patently offensive manner." Under 10(b), which applies only to leased access channels, operators are required to segregate "patently offensive" programming on a single channel, to block that channel from viewer access, and to unblock it (or later to reblock it) within 30 days of a subscriber's written request. Between 1984, when Congress authorized municipalities to require operators to create public access channels, and the Act's passage, federal law prohibited operators from exercising any editorial control over the content of programs broadcast over either type of access channel. Petitioners sought judicial review of 10(a), (b), and (c), and the en banc Court of Appeals held that all three sections (as implemented) were consistent with the First Amendment.

Held: The judgment is affirmed in part and reversed in part. 56 F. 3d 105, affirmed in part and reversed in part. Justice Breyer delivered the opinion of the Court with respect to Part III, concluding that 10(b) violates the First Amendment. That section's "segregate and block" requirements have obvious speech-restrictive effects for viewers, who cannot watch programs segregated on the "patently offensive" channel without considerable advance planning or receive just an occasional few such programs, and who may

*Together with No. 95-227, Alliance for Community Media et al. v. Federal Communications Commission et al., also on certiorari to the same court.

727

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