The opinion of the court was delivered by: LEONARD B. SAND
Plaintiffs Media Ranch, Al Goldstein, Kee-Byrd Productions, Robin Byrd, Gay Cable Network, and Lou Malleta produce programs designed to be televised over cable television systems. Defendant Time Warner Cable of New York City transmits cable television programming pursuant to a franchise granted in 1990 to its predecessor in interest, Manhattan Cable Television, by Defendant The City of New York. Defendant Thomas Dunleavy is the, Deputy Commissioner of the New York City Department of telecommunications and Cable Television. Before this Court is a motion by Plaintiffs for a preliminary injunction to prohibit Time Warner Cable of New York City from scrambling plaintiffs' programming.
For the reasons set forth below, we grant the motion.
This case, when originally commenced in 1990, rested principally on the 1984 Cable Act. The original plaintiffs, Media Ranch and Al Goldstein produce a late-night, sexually oriented program entitled "Midnight Blue" that is cablecast on Defendant Time Warner Cable of New York City's leased access Channel 35. Midnight Blue is a magazine-type program devoted to providing adult entertainment and feature programs on both sexual and non-sexual issues. Al Goldstein and Media Ranch challenged Manhattan Cable's (Time Warner's predecessor in interest) practice of pre-screening the content of "Midnight Blue" and the resulting instances where the pre-screening led to Manhattan Cable's refusal to cablecast portions of the program. Plaintiffs further contended that the pre-screening practice violated New York Executive Law § 829 which prohibits cable television companies from censoring any program presented over a leased access channel. Upon these claims, plaintiffs moved for summary judgment in November 1991. Defendants. cross-moved for summary judgment.
While these motions were sub judice, Congress enacted the 1992 Cable Act which directly affected the degree of editorial control a cable operator could exercise over its leased access programming. Section 10 of the 1992 Cable Act amended § 612(h) of the 1984 Cable Act by allowing cable operators to censor indecent programming based upon the content of the programming. § 10(a) provides:
This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.
Section 10(b) directed the Federal Communications Commission to promulgate "regulations designed to limit the access of children to indecent programming" for cable operators who did not prohibit indecent programming under § 10(a). § 10(b) contains three government directives. First, it requires cable operators to place all indecent programs (as identified by the program providers) on a single channel. Second, it requires cable operators to block the single channel unless the subscriber requests access to the channel in writing. Third, § 10(b) requires programmers to inform cable operators if the program would be indecent as defined by Commission regulations.
Petitions for review challenging the constitutionality of § 10 were submitted to the United States Court of Appeals for the District of Columbia Circuit in February 1993. In the spring of. 1993, the D.C. Circuit stayed § 10 pending disposition of the petitions. Alliance for Community Media v. FCC, 1993 U.S. App. LEXIS 37211, Nos. 93-1169 and 93-1171 (D.C. Cir. April 7, 1993); Alliance for Community Media v. FCC, Nos. 93-1270 and 93-1276 (D.C. Cir. May 7, 1993). On November 23, 1993, a panel of the D.C. Circuit held that the provision of § 10(a) that authorized cable companies to ban completely indecent programming from leased access channels violated the First Amendment. The panel further held that § 10(b)'s segregation and blocking regulations were impermissibly under-inclusive. Alliance for Community Media v. FCC, 304 U.S. App. D.C. 37, 10 F.3d 812 (D.C. Cir. 1993).
Thereafter, the Court of Appeals sitting en banc, vacated the panel's judgment. On June 6, 1995, a divided Court held that any censorship under § 10(a) was entirely voluntary, without coercion, significant encouragement or joint participation by the federal government and therefore, no state action was present upon which to ground a constitutional claim. The Court also upheld the constitutionality of § 10(b) finding its directives narrowly tailored to further a compelling government interest. On July 10, 1995 the Court of Appeals stayed its mandate pending the filing of petitions for writs of certiorari in the Supreme Court. By August 9, 1995, all Alliance petitioners had filed their certiorari petitions. The Government papers are expected to be submitted during this coming October 1995. Alliance for Community Media v. FCC, 56 F.3d 105, 117 (D.C. Cir.), petition for cert. filed, 64 U.S.L.W. 3104 (N.D. Cal. 1995) (No. 95-227).
By agreement among counsel in the original Al Goldstein and Media Ranch v. Manhattan Cable Television, et. al. case, and with the approval of this Court, the cross-motions for summary judgment that were pending prior to the enactment of the 1992 Act were withdrawn and further litigation of the action was held in abeyance pending the decision of the D.C. Circuit Court.
After the D.C. Circuit's en banc decision upholding the constitutionality of § 10, Time Warner announced on July 17, 1995 that it will institute a new indecency policy. Commencing October 1, 1995, Time Warner will scramble the signal of leased access programming that it considers indecent. See Plaintiff's Order to Show Cause for a Temporary Restraining Order, Exhibit B. Scrambling will occur even though the "indecent programs" are scheduled for viewing only "during late-night and overnight hours." Access to such "indecent programming" may only be gained by submitting a written request containing a statement that the viewer is the cable subscriber and is at least 18 years old.
Citing constitutionality concerns over Time Warner's Scrambling policy, § 10's impact upon that policy, and its direct conflict with New York Executive Law § 829, plaintiffs have petitioned this Court for a preliminary injunction to maintain the status quo and to enjoin the implementation of Time Warner's scrambling policy pending the Supreme Court's action with respect to the certiorari petitions.
We find the questions posed by this motion to be close and complex. The Court of Appeals for the District of Columbia, sitting en banc and having the benefit of a prior panel opinion, took eight months from the time of oral argument before deciding the Alliance case.
The Alliance Court split four to seven, wrote four opinions, and ultimately concluded that the constitutional issues before it were so close and of such magnitude that it stayed its mandate pending action by the Supreme Court on the certiorari opinions filed in the Alliance3 case and stayed as well the F.C.C regulations adopted pursuant to the statute.
This Court has been given only since September 18th, when it heard over four hours of oral argument, receiving briefs and affidavits as late as September 19th, in which to consider this motion. Moreover, circumstances compel a virtually immediate decision by this Court if the parties are to be afforded an opportunity to seek appellate review
and to advise the 290,000 subscribers to Time Warner's ...