The Federal Communications Commission reportedly is seeking to apply broadcast rules that would require cable to ban indecent content from 6 a.m.-1 0 p.m. In 2000, the Supreme Court struck down a similar proposal for indecency regulation of cable channels in a case involving Playboy Channel.
"It appears likely that a court would find that to apply the FCC's indecency restriction to cable television would be unconstitutional,” the CRS concludes in its 14-page study, released Dec. 1.
As the public-policy arm of Congress, the CRS prepares reports for the exclusive use of Capitol Hill lawmakers and committee personnel. Its work is confidential and intended to be nonpartisan.
In an attempt to compromise with Congress and the FCC, the National Cable and Telecommunications Association offered to let legislation pass that would apply broadcast indecency rules to cable's basic and expanded-basic tiers on the condition that the law not take effect until the courts had upheld its constitutionality.
But the proposal did not gain much traction on Capitol Hill. In its analysis questioning a cable indecency law, the CRS said courts would require the law serve a compelling state interest and represent the least restrictive means for its advancement.
"It seems uncertain whether the [Supreme] Court would find that denying minors access to ‘indecent’ material on cable television would constitute a compelling governmental interest," the CRS said in its report.
Additionally, Free Speech Coalition Spokesperson Jeffrey Douglas told XBiz it is unlikely a law regulating indecency on cable would pass on Capitol Hill.
“Regrettably, FCC’s decision will be made, surely, on raw political basies,” Douglas said. “But, fortunately … all of the people who would be subject to regulation have enormous resources and advocates.”
Previously, the courts have said that shielding children from sexually explicit material is a compelling state interest. However, the CRS said cable indecency regulation was problematic because "not all indecent material is sexually explicit."
The CRS said the Supreme Court might accept a 6 a.m.-10 p.m. ban on indecent material as the least-restrictive method of applying such rules to cable but still strike down the law
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