Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 107 (1996)

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Cite as: 518 U. S. 727 (1996)

Opinion of Thomas, J.

and there was no evidence that those rules were ineffective. 492 U. S., at 128-130.15

The Court strikes down § 10(b) by pointing to alternatives, such as reverse blocking and lockboxes, that it says are less restrictive than segregation and blocking. Though these methods attempt to place in parents' hands the ability to permit their children to watch as little, or as much, indecent programming as the parents think proper, they do not effectively support parents' authority to direct the moral up-bringing of their children. See First Report and Order, 8 FCC Rcd, at 1000-1001.16 The FCC recognized that leased access programming comes "from a wide variety of independent sources, with no single editor controlling [its] selection and presentation." Id., at 1000. Thus, indecent programming on leased access channels is "especially likely to be shown randomly or intermittently between non-indecent programs." Ibid. Rather than being able to simply block out certain channels at certain times, a subscriber armed with only a lockbox must carefully monitor all leased access programming and constantly reprogram the lockbox

15 After Sable, Congress quickly amended the statute and the FCC again promulgated those "safe harbor" rules. Those rules were later upheld against a First Amendment challenge. See Dial Information Servs. Corp. of N. Y. v. Thornburgh, 938 F. 2d 1535 (CA2 1991), cert. denied, 502 U. S. 1072 (1992); Information Providers' Coalition for Defense of First Amendment v. FCC, 928 F. 2d 866 (CA9 1991). In promulgating regulations pursuant to § 10(b), the FCC was well aware that the default rules established for dial-a-porn had been upheld and asserted that similar rules were necessary for leased access channels. See First Report and Order, 8 FCC Rcd 998, 1000 (1993) ("The blocking scheme upheld in these cases is, in all relevant respects, identical to that required by section 10(b)"); ibid. ("[J]ust as it did in section 223 relating to 'dial-a-porn' telephone services—Congress has now determined that mandatory, not voluntary, blocking is essential").

16 In the context of dial-a-porn, courts upholding the FCC's mandatory blocking scheme have expressly found that voluntary blocking schemes are not effective. See Dial Information Servs., supra, at 1542; Information Providers' Coalition, supra, at 873-874.

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