United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 35 (2000)

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Cite as: 529 U. S. 803 (2000)

Breyer, J., dissenting

In 1995, Senator Dianne Feinstein, the present statute's legislative cosponsor, pointed out that "numerous cable operators across the country are still automatically broadcasting sexually explicit programming into households across America, regardless of whether parents want this or subscribers want it." 141 Cong. Rec. 15588. She complained that the "industry has only taken baby steps to address this problem through voluntary policies that simply recommend action," ibid., adding that the "problem is that there are no uniform laws or regulations that govern such sexually explicit adult programming on cable television," id., at 15587. She consequently proposed, and Congress enacted, the present statute.

The statute is carefully tailored to respect viewer preferences. It regulates transmissions by creating two "default rules" applicable unless the subscriber decides otherwise. Section 504 requires a cable operator to "fully scramble" any channel (whether or not it broadcasts adult programming) if a subscriber asks not to receive it. Section 505 requires a cable operator to "fully scramble" every adult channel unless a subscriber asks to receive it. Taken together, the two provisions create a scheme that permits subscribers to choose to see what they want. But each law creates a different "default" assumption about silent subscribers. Section 504 assumes a silent subscriber wants to see the ordinary (non-adult) channels that the cable operator includes in the paid-for bundle sent into the home. Section 505 assumes that a silent subscriber does not want to receive adult channels. Consequently, a subscriber wishing to view an adult channel must "opt in," and specifically request that channel. See § 505. A subscriber wishing not to view any other channel (sent into the home) must "opt out." See § 504.

The scheme addresses signal bleed but only indirectly. From the statute's perspective signal "bleeding"—i. e., a failure to fully "rearrange the content of the signal . . . so that the programming cannot be viewed or heard in an under-

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