the franchise proposal is accepted, the franchising authority may enforce these PEG requirements. 47 U.S.C. § 531 (1988). The cable operator may not exercise any editorial control over the PEG programming that it is required to carry, id. § 531(e), but may specify, in its franchise agreement, that it will not carry obscene programming, see id. § 544(d)(1).
Section 612(b)(1) of the Cable Act of 1984 requires cable operators to designate some of their channel capacity for use by commercial programmers that are unaffiliated with the operator.
The cable operator may not exercise editorial control over this "leased access" programming, except that it may consider content in establishing a reasonable price to charge the unaffiliated lessee, 47 U.S.C. § 532(c) (1988), and it may enforce a policy of prohibiting programming that the cable operator reasonably believes to be obscene, Cable Act of 1992 § 10(a). Section 9 of the Cable Act of 1992 directs the FCC to determine and establish reasonable rates that operators may charge unaffiliated users, and to establish reasonable terms and conditions for such use.
These provisions, like the "must carry" provisions struck down in Century Communications and Quincy Cable, raise substantial First Amendment issues. See, e.g., Century Federal, Inc. v. City of Palo Alto, 710 F. Supp. 1552 (N.D. Cal. 1987). Nevertheless, the plaintiffs have failed to demonstrate immediately impending injury of a magnitude sufficient to warrant a preliminary injunction. Most important, the plaintiffs' claims of irreparable injury are belied by the fact that they have waited eight years to bring this motion for "emergency" relief.
In addition, any PEG obligations incurred by the plaintiff operators are the result of franchises between the operator and the local authority -- not the direct result of action by the federal defendants before this Court.
The plaintiffs, and the ACLU as amicus curiae, also challenge section 10(d) of the Cable Act of 1992, which eliminates all immunity for cable operators that transmit obscene messages on PEG or leased access channels. The plaintiffs argue that under the current statutory scheme, they may be held criminally or civilly liable for showing programming that they must carry and cannot edit. Although any such imposition of liability without fault may represent questionable legislative policy, in the absence of actual or impending proceedings against the plaintiffs, there is as yet no irreparable First Amendment injury.
Section 15 of the Cable Act of 1992 requires operators to give notice to its subscribers, at least thirty days in advance, if it intends to provide a premium channel -- one that offers movies rated X, NC-l7, or R -- to those subscribers that do not receive the channel. The plaintiffs contend that providing notice will deter operators from showing previews because "it will be very expensive to block such previews from objecting customers." Affidavit of Joseph J. Collins, Time Warner Entertainment Company, C.A. No. 92-2494, at P 41. This alleged injury is completely speculative. It is, moreover, largely self-inflicted. The First Amendment does not guarantee that a speaker may force his message upon an unwilling captive audience. Offering uninvited previews of programs that may offend some subscribers, in advance of affording the recipients opportunity to refuse them, is a marketing choice plaintiffs have made for themselves. The federal defendants are not driving them to it.
For the foregoing reasons, therefore, it is, this 22nd day of December, 1992,
ORDERED, that plaintiffs' motions for preliminary injunctions seeking to enjoin the defendants from enforcing or implementing sections 3, 7(b)(4)(B), 7(c), 9, 10(d), 11, 15, 19, 24, and 25 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, and sections 611 and 612 of the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2782, are denied; and it is
FURTHER ORDERED, that the parties shall file dispositive motions, and such briefs as may be necessary to supplement the record here on issues relating to the constitutionality of sections of the Cable Acts of 1992 and 1984 other than Sections 4 and 5 of the 1992 Cable Act, in accordance with the Order of December 9, 1992, establishing a briefing schedule with respect to Sections 4 and 5; and it is
FURTHER ORDERED, that oral argument with respect to the constitutionality of such other sections shall be heard by this single-judge district court in conjunction with oral argument before the three-judge district court on Sections 4 and 5 on March 4, 1993.
Thomas Penfield Jackson
U.S. District Judge