Smut on the small screen: the future of cable-based adult entertainment following United States v. Playboy Entertainment Group.

• Author: Skafish, Bradley A.

1. INTRODUCTION

   On May 22, 2000, the Supreme Court narrowly affirmed a decision of the United States District Court for the District of Delaware, holding that section 505 of the Telecommunications Act of 1996 violates the First Amendment. (1) Under section 505, cable television providers offering channels "primarily dedicated to sexually-oriented programming" were required to either "`fully scramble or otherwise fully block' those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m." (2) Because scrambling technology can be imprecise and allow portions of some programs, though scrambled, to nevertheless be seen or heard through a "phenomenon known as `signal bleed'," most "cable operators adopted the ... `time channeling' approach" as their method of compliance with the statute. (3) The decision to engage in time channeling effectively eliminated the transmission of the targeted programming to every household in those service areas for two-thirds of the day. (4) Furthermore, cable providers were already required by section 504 of the same Act to "without charge, fully scramble or otherwise fully block" the reception of any channel to a particular customer's house upon request by the customer. (5) Playboy Entertainment Group brought suit and successfully argued that section 505 was "unnecessarily restrictive content-based legislation violative of the First Amendment." (6)

   The ramifications of United States v. Playboy Entertainment Group remain to be seen. Should interested parties view the decision as evidence of the Court ushering in a more conducive era for sexually-oriented cable programming? Has the Court quietly issued a landmark case in First Amendment telecommunications regulation? Perhaps the Playboy decision will become "the case" for cable television regulation in the incipient years of the Third Millennium; on the other hand, it may simply be an example of the Court disposing of an unconstitutional statute without departing from existing law. What are the consequences of invalidating a statute designed to protect children from harmful influences when the statute imposes a financial burden upon speech, but stops short of a ban? Is "signal bleed" a legitimate hazard to children, or merely a politicized issue bearing the mantle for a wealth of unspoken indecency concerns? Most importantly, what should interested parties take away from this decision?

   This Note argues that the most important aspect of Playboy is the Court's determination that cable television is not analogous to broadcast media. Provided it withstands the test of time, this distinction allows the cable industry to avoid the more stringent regime placed upon broadcast media. The Playboy decision also shows the Court's willingness to invalidate laws even when they serve a compelling interest and impose less restrictions than a complete ban. Members of the Court differed on whether "signal bleed" actually constituted an influence harmful to children. This discrepancy evinces a significant disagreement on where lines should be drawn discerning dangerous from harmless material. It also demonstrates the extent to which the "least restrictive alternative" test can be bent to serve competing interests.

   Part II of this Note provides a general explanation and analysis of the Telecommunications Act of 1996, examining the competing goals and interests leading to and served by the Act. Part III delineates the substantive effects of sections 504 and 505, both intended and unforeseen. Part IV discusses Playboy in depth, including an analysis of the majority's and the dissent's perspectives, a look at past applications of the "least restrictive alternative" test, and an inquiry into the existence and degree of significant consequences of the case. This Note concludes in Part V by restating the major impacts of the case and making limited recommendations for interested parties.

2. THE TELECOMMUNICATIONS ACT OF 1996

   Simply put, the Telecommunications Act of 1996 (the 1996 Act) is the latest of several enactments designed to stimulate competition in the telecommunications industry. (7) Though the Act's ultimate consequences may be unsettled and its degree of approval varied, it has thus far achieved relatively greater success than its predecessors. (8) Congress's express goal in passing the 1996 Act was to deregulate the telecommunications industry so as to reduce entry barriers and promote competition, (9) and evidence suggests that, at least to some degree, the Act has in fact accomplished this goal. (10) It would be naive, however, to assume that competition and consumer gains were the only factors influencing the terms of the Act.

   Lobbyist contributions may have played a large role in shaping the 1996 Act. In examining the Act, Professor Thomas Hazlett observed that federal policymakers had benefited through increased political contributions from telecommunications firms and executives. (11) He added that the Act provided a platform for particularly newsworthy social issues, including TV violence, the V-Chip, and Internet indecency, (12) implying that industry players may not have been the only interested lobbyists. Many consumer activists view the Act as a failure and cite contributions by corporate Political Action Committees ("PACs") as the source of the perceived failure. (13) Figures compiled by the Center for Responsive Politics reveal that "[i]n the 1996 and 1998 election cycles, federal political contributions by telecommunications firms rose absolutely and relative to the overall rise in political giving...."(14)

   That telecommunications regulation now accounts for a larger percentage of political contributions is not necessarily a negative. It does, however, relate back to the subject of adult entertainment on cable television because "`hot button' social issues"(15) were addressed by powerful lobby groups. One can infer that certain provisions in the 1996 Act, perhaps including section 505, were included for the sake of votes and future contributions, rather than for increasing competition and aiding consumers.

3. SECTIONS 504 AND 505

   Both sections 504 and 505 of the Telecommunications Act of 1996 relate to the blocking or scrambling of cable channels, but they operate in significantly different ways. Section 504 favors parents and other private individuals as decision makers regarding the cable programming entering their homes; section 505 places this role in the hands of legislators. Whether the sections compliment or corrupt one another is the major source of debate.

   1. Section 504's Effects, or Lack Thereof

      Though a chief purpose of section 504 is to enable cable customers to keep sexually explicit material out of their homes, the provision does not explicitly state it. (16) Section 504 provides that "[u]pon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it." (17) Thus, a person disapproving of a channel's programming for any reason could keep it from being transmitted into his or her household. Blocking under section 504, however, was used sparsely, even during the period of more than a year when it was the only blocking mechanism. (18) This notion is quantified by the fact that "[b]etween March 1996 and May 1997, while the Government was enjoined from enforcing [section] 505.... fewer than 0.5% of cable subscribers requested full blocking [under section 504]...."(19)

   2. Section 505's Background

      Unlike section 504, section 505 is explicitly aimed at sexually-oriented programming. Section 505's requirement reads as follows:

      In providing sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it. (20) The statute requires that channels be "fully" blocked or scrambled because current scrambling technology, used to keep customers from receiving channels for which they have not paid, often fails to do so. Cable television systems typically use radio frequency or "baseband" scrambling systems, "which may not prevent signal bleed, ... [meaning] discernible pictures may appear from time to time on the scrambled screen," and audio portions may be heard. (21) Though suitable alternatives exist that would eliminate signal bleed, they currently are not economical for system-wide use. (22) Perhaps anticipating that cable providers would be unable to scramble the programming fully, the drafters included an "implementation" clause in section 505, stating that until cable providers complied with the requirements, they were restricted from broadcasting such programming during "the hours of the day (as determined by the Commission) when a significant number of children are likely to view it." (23) The hours of the day when children are unlikely to be watching, as determined by the Commission, are from 10 P.M. to 6 A.M. (24) Due to the previously mentioned financial burden associated with fully scrambling, most cable providers used the "time channeling" approach, only broadcasting such channels between 10 P.M. and 6 A.M. (25) According to one survey, 69% complied with section 505 in this fashion. (26) Therefore, in over two-thirds of the cable-receiving United States, even paying customers desiring to view the explicit programming could not do so between the hours of 6 A.M. and 10 P.M. This constituted a considerable restriction, since it is estimated that "30 to 50% of all adult programming is viewed by households prior to 10 p.m." (27)

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