About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

8 Cardozo L. Rev. 317 (1986-1987)
An Excess of Access: The Cable Communications Policy Act of 1984 and First Amendment Protection of Editorial Discretion

handle is hein.journals/cdozo8 and id is 335 raw text is: AN EXCESS OF ACCESS: THE CABLE COMMUNICATIONS POLICY ACT OF 1984 AND FIRST AMENDMENT PROTECTION OF EDITORIAL DISCRETION But even a reasonable regulation of the right to free speech is not compatible with the First Amendment.' Cable television looks like broadcast television: both impinge on the senses via a video receiver.2 Despite this apparent similarity, there are constitutionally significant differences between them.' The multiple sources of cable regulation-federal, state, and munici- paP-have not always acted in concert, resulting in an array of regu- lations that lacks the consistency and clarity of a single comprehensive scheme.5 Governmental policies6 and judicial ratio- nales7 which were insensitive to differences between broadcast and cable television8 saddled the cable television industry9 with regula- I Poulos v. New Hampshire, 345 U.S. 395, 425 (1953) (Douglas, J., dissenting), quoted in W. Berns, Freedom, Virtue & the First Amendment 2 (1957). 2 Quincy Cable TV v. FCC, 768 F.2d 1434, 1450 (D.C. Cir. 1985), cert. denied, 106 S. Ct. 2889 (1986). One recent opinion referred to the superficial similarity between broadcasting and cable television. Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1403 (9th Cir. 1985), aff'd and remanded, 106 S. Ct. 2034 (1986) (remanding to district court for further finding of facts surrounding cable company's first amendment claim). Sometimes, however, cable and broadcast television look somewhat dissimilar-cable transmissions carry content that broadcasters have avoided. Sexually explicit material, for example, is relegated to cable television. 3 Quincy Cable TV v. FCC, 768 F.2d 1434, 1450 (D.C. Cir. 1985), cert. denied, 106 S. Ct. 2889 (1986). That broadcast and cable television deserve different degrees of constitutional protection is a central theme of this Note. 4 See infra notes 40-48 and accompanying text. 5 The Cable Communications Policy Act of 1984 sets up such a comprehensive scheme. See infra note 52. 6 State and local governments, attempting to protect such local interests as the disruption caused by digging up public byways, were largely unsuccessful in regulating cable television. The FCC was broadcast protective, which hindered cable television's growth. These differing goals created regulations that did not mesh well. For a discussion of the effect of differing local, state, and federal governmental policies on cable television, see infra notes 41-45. 7 See infra notes 127-48 and accompanying text (discussion of how rationales supporting relatively intrusive regulation of broadcast television are now considered inapplicable to cable television). 8 See infra text accompanying notes 31-39. 9 The phrase cable television industry is used throughout this Note to refer to a wide range of persons and interests. See generally M. Hamburg, All About Cable (rev. ed. 1985) (providing a comprehensive introduction to the various interests which constitute the indus- try). Generally, the parties involved in cable television are: the franchisor, comprising the local or state political body which has authority to grant permission to use public byways

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most