Smut on the Small Screen: The Future of Cable-Based Adult Entertainment Following United States v. Playboy Entertainment Group

I. 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. …