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Endnotes

1. Fellow, The Annenberg Washington Program in Communications Policy Studies of Northwestern University; Attorney, Action for Children's Television; Professor of Practice, Duke University.

2. While at one time there were over 15 bills concerning cable television regulation pending in the 101st Congress, the compromise bills which emerged were S. 1880, "Cable Television Consumer Protection Act of 1990," 101st Cong., 1st Sess., Nov. 1989, in the Senate, and H.R. 5267, 101st Cong., 2d Sess., in the House. Ultimately, neither bill had sufficient support to become law.

3. Competition, Rates Regulation, and the Commission's Policies Relating to the Provision of Cable Television Service, FCC No. 90-276, released July 31, 1990 [herein "1990 Cable Report"]. The FCC was required to make this report to Congress by the Cable Communications Policy Act of 1984, P. L. 98-549,98 Stat. 2780, Oct. 30, 1984 (codified at 47 U.S.C. Sec. 521-559)(The "Cable Act"0. The Cable Act established the first comprehensive national scheme of regulation for cable television, substantially derefulating cable reates and other aspects of the industry, and defining the respective jurisdictions of the FCC, the states, and the local franchise authorities over cable operators. The FCC's 1990 Cable Report represented the first formal governmental review of the success of the Cable Act from a regulatory perspective. Ironically, by the time it was issued by the FCC, Congress had already extensively debated many of the issues that were the subject of the FCC's recommendations.

4. See "Why Viewers Would Like to Zap Their Cable Firms," Wall Street Journal, Mar. 19, 1990 at B1; "Rival From the Sky Hovers Over Cable," id.

5. See, e.g., "Communications Competitiveness and Infrastructure Modernization Act of 1990," S. 2800, 101st Cong., 2d Sess., June 1990,. Some of the telephone companies argue that, if permitted into the video programming business, they would construct broadband fiber optic cable networks to all homes and businesses (and other end users) in the sUnited States. A "broadband" fiber network would, in theory, carry telephone and data (computer) lines as well as video into the home or business through a single wire. Many believe such a system would multiply the capacity of today's cable television systems exponentially, enabling virtually any interested party to have access to a video channel. However, even the most optimistic forecasts do not predict a fiber cable into the home until at least the early part of the next century.

6. See, e.g., S. 1880, 101st Cong., 1st Sess., supra.

7. See, e.g., id.

8. See, e.g., Report & Order, 1 FCC Rcd. 864 (1986).

9. According to the most recent penetration figures, cable service now posses (or can be subscribed to by) 90 percent of all American television households, and is subscribed to by 59 percent of all U.S. television households. See A.C. Neilson Co., Media Research News, July 1990.

10. The carriage of over-the-air broadcast signals was determined in the past by the so-called "must-carry" rules promulgated bu the FCC. Those rules, however, were twice struck down by the United States Court of Appelas as arbitrary and in violation of the First Amendment. See Century Communications v. FCC, 835 F.2d 292 (D.C. Cir. 1987), clarified, 837 F.2d 517 (D.C. Cir. 1987), cert. Denied, 108 S.Ct. 2014 (1988). Cable operators may also be required to make available public, educational, and governmental access (PEG) channels which are outside of the editorial discretion of the cable operator. See Section 611 of the Cable Act, 47 U.S.C. Sec 531. Such channels are not universally required. Sec. 611(a).

11. In Associated Press v. U.S., the Supreme Court stated that the goal of the First Amendment is to foster "the widest possible dissemination of information from diverse and antagonistic sources." 326 U.S. 1,20 (1945) affirming 52 F. Supp. 362,272 (S.D.N.Y., 1943)(the interest in diverse sources of information is "akin to, if indeed not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.").

12. 47 U.S.C. Sec. 532(b).

13. 47 U.S.C. Sec. 531.

14. 20 FCC 2d 201 (1969). "CATV" (Community Antenna Television) was the name intially given to the technology now more commonly known as cable television.

15. Id. At 209.

16. Id. At 205.

17. These rules were an attempt by the Commission to ensure that cable evolved into something more than a medium used to retransmit broadcast signals. In addition to the leased access requirements discussed here, the rules imposed requirements regarding minimum channel capacity, program origination, two-way capacity, and public, educational, and governmental (PEG) access channels. 47 C.F.R. Sec. 76.251 et seq. (1972).

18. 47 C.F.R. See 76.251(a)(7)(1972), reprinted in Cable Television Report and Order, 36 FCC 2d 141, 241 (1972).

19. Id.

20. Interestingly, however, the cable operator was required to prhibit obscene or indecent matter and lottery information and to require sponsorship identification. 47 C.F.R. Sec. 76.251 (a)(11)(iii)(1972). It was not clear whether the cable operator was permitted to refuse carriage on this basis or whether it was the task of the franchising authority, which is now the entity responsible for this kind of content regulation under Section 612(h) of the Cable Act of 1984, to "prescreen" or otherwise intervene. See discussion at note 157 infra. The FCC did state that since the cable operator lacked control over the channels, it would not be liable for the content (whether criminal or civil, such as libel). See Farmers Educational and Cooperative Union v. WDAY, 360 U.S. 525 (1959).

21. Cable Television Report and Order, supra 36 FCC 2d at 197, citing First Report and Order in Docket 18397, 20 FCC 2d 201, supra, at par. 3.

22. United States v. Midwest Video Corp., 406 U.S. 649 (1972).

23. On the Cable, Report of the Sloan Commission on Cable Communications, McGraw-Hill, 1971 at 142-144.

24. Ibid.

25. See Besen & Johnson, An Economic Analysis of Mandatory Leased Channel Access for Cable Television, Rand Corp., R-2989-MF, 1982 at 11.

26. Cabinet Committee on Cable Communications, Report to the President, 1974.

27. Id. At 29 [footnotes omitted].

28. Id. At 30. The Report did acknowledge that rates could vary depending on time of day, long-term or volume leasing, whether the lessee was commercial or noncommercial, whether the service was advertiser-based, and whether the lessee used the channel for a nonvideo programming use such as home banking. Id. At 44.

29. Under pressure, the Committee did eventually recommend that the cable operator be allowed to control "one or two additional channels." Id. at 65.

30. Id. At 30.

31. Report & Order in Docket 20508, 59 FCC 2d 294 (1976).

32. Id. At 296.

33. Id. At 316. The 1976 rules, like their 1972 counterparts, also set forth obligations regarding PEG access channels, their manner of use, provision of origination facilities, etc. 47 C.F.R. Sec. 76.251 - 76.256 (1976).

34. FCC v. Midwest Video Corp., 440 U.S. 689 (1979). Although the Court did not reach the cable operators' First Amendment claims, it noted in a footnote that the lower court's First Amendment discussion (finding the FCC rules violative of the First Amendment) was not "frivolous."

35. 47 U.S.C. Sec 153(h).

36. Midwest Video, supra, 440 U.S. at 700-701.

37. Petition of Henry Geller and Ira Barron to Issue Notice of Proposed Rule Making, filed October 9, 1981.

38. E.g., Comments of the National League of Cities, filed December 4, 1981.

39. See Cable Television Communications Act of 1982, Report of the Senate Committee on Commerce, Science and Transportation S. 2172, 97th Cong., 2d Sess., Rep. No. 97-518, August 10, 1982.

40. The National League of Cities (NLC) and the U.S. Conference of Mayors negotiated for the cities and the National Cable Television Association (NCTA) participated for the cable industry. See Hearings on S. 66 Before the Subcommittee on communications of the committee on Commerce, Science and Transportation, 98th Cong., 1st Sess., Feb. 16 and 17, 1983, Rep. No. 98-26, at 123 (Statement of Senator Goldwater) [herein "Senate Hearings"] and Hearings on H.R. 4103, H.R. 4229, and H.R. 4299 Before the house Subcommittee on Telecommunications, Consumer Protection and Finance of the Committee on Energy and Commerce, 98th Cong., 1st Session, May 25, June 22, Nov. 3, 1983, "Options for Cable Television," 9 (Statement of Rep. Wirth) [herein "House Hearings"]. It was House bill H.R. 4103 that ultimately was passed as the Cable Communications Policy Act of 1984 (the "Cable Act").

41. For example, the American Public Power Association stated that cable could be used for utility load control, energy management, meter reading, and automation of transmission and distribution functions. Without the ability to lease two-way cable capacity, these services would be limited or foreclosed. See House Hearings, supra, at 623-624. See also Statement of Citibank, id. At 222.

42. See Owen & Greenhalgh, Competitive Policy Considerations in Cable Television Franchising (1983), cited in House Hearings, supra, at 70.

43. Testimony of Frank Greif, Mayor's Office of Cable Communicatins, Seattle, Washington, Senate Hearings, supra, at 135.

44. Testimony of Trygve Myhe\ren, House Hearings, supra, at 253-255. See also Statement of John Saeman, CEO of Daniels Associates (which owns and operates 22 cable systems), id. at 267.

45. Testimony of Thomas Wheeler, id. at 62. Of course, the operative consideration is diversity of sources, not diversity of programming. See note 11, supra.

46. House Hearings, supra, at 286.

47. 47 U.S.C. Sec. 532.

48. See Letter of Consumer Federation of America, et al., dated October 1, 1984, 130 Cong. Rec. 10447, 98th Cong., 2d Sess., Oct. 1, 1984.

49. 47 U.S.C. Sec 542.

50. Under 47 U.S.C. Sec 543, the FCC defines when "effective competition" exists. The definition is again under consideration at the FCC. Further Notice of Proposed Rule Making, MM Docket # 90-4, FCC #90-412, Dec. 13, 1990.

51. As the House Report mentioned, "cities do not have the political incentives to push for leased access...." Report of the Committee on Energy and Commerce, H.R. 4103. 98th Cong., 2d Sess., Rep. No. 98-934, at 30 [hereinafter "House Report"].

52. House Report, supra, at 31.

53. House Report, supra, at 31-32, citing, Red Lion Broadcasting v. FCC, U.S. 367, 390 (1969).

54. House Report, supra, at 48.

55. Interview with Henry Geller, Communications Policy Fellow, Markle Foundation, Oct. 1, 1990.

56. 47 U.S.C. Sec 532(a).

57. 47 U.S.C. Sec 532(b). When calculating percentages for systems of 36-100 channels, channels required by federal law (such as federally imposed aeronautical channels or the former "must-carry" channels) are not included. "Activated channels" are defined as channels engineered at the cable system headend for service and generally available, regaradless of whether service is actually being provided. 47 U.S.C. Sec 532(b)(4)(a).

58. 47 U.S.C. Sec 532(b)(2).

59. This is defined as "programming provided by, or generally considered comparable to programming provided by, a television braodcast station." 47 U.S.C. Sec 522 (16).

60. 47 U.S.C. Sec. 532(b)(5)(B).

61. 47 U.S.C. Sec. 532(c)(1).

62. House Report, supra, at 50.

63. Id. at 50.

64. 47 U.S.C. Sec. 532(f).

65. The franchising authority, however, is permitted to exercise its judgment as to whether a potential service is obscene or indecent. 47 U.S.C. Sec 532(h).

66. 47 U.S.C. Sec 532(c)(2).

67. House Report, supra, at 51.

68. Id.

69. Id.

70. Id.

71. 47 U.S.C. Sec. 532(d).

72. House Report, supra, at 52.

73. 47 U.S.C. Sec 532(d).

74. 47 U.S.C. Sec 532(f).

75. 47 U.S.C. Sec 532(d).

76. 47 U.S.C. Sec. 532(e).

77. 47 U.S.C. Sec 532(g).

78. 1990 Cable Report, supra, at par. 3 citing Paul Kagan Assoc., Inc., Marketing New Media, at 5 (June 18, 1990). See also note 9, supra.

79. Cable Television Advertising Bureau, Cable TV Facts '90 (1990) at 5.

80. See note 9, supra, and accompanying text.

81. 1990 Television and Cable Factbook (cabel and service volume)(Warren Pub.) at C-35.

82. This is even more true with the elimination of the must-carry rules, note 10, supra, because despite the FCC's education campaign on the use of A/B switches, they are still not a practical measure for most people. Not only do cable operators encourage subscribers to dismantle their antennas, Report and Order, 1 FCC Rcd 864, 880, (1986), some television sets do not even provide a separate UHF antenna input anymore. See Comments of INTV in MM Docket 89-600, March 1, 1990 at 35.

83. See section II, supra.

84. Besen Johnson, An Economic Analysis of Mandatory Leased Access for Cable Television, supra, at 19-20.

85. Ithiel de Sola Pool, technologies of Freedom, Harvard University Press, 1983 at 172.

86. The proper measure of cable's market power is open to some dispute (whether by Tobin's Q ration, regression analyses, or other means), although the government agencies which have addressed the question do generally agree that cable does have such power to varying degrees. See Report of the Senate Committee on Commerce, Science and Transportation on S. 1880, Cable Television and Consumer Portection Act of 1990, Rep. No. 101-381, 101st Cong., 2d Sess., July 19, 1990, at 9-12 [herein "Senate Report"]; Comments of the Department of Justice in MM Docket No. 89-600, March 1, 1990; 1990 Cable Report, supra, at par. 127, App. F.

87. Indeed, the Fcc has found that the Cable Act of 1984 fostered such vertical integration. 1990 Cable Report, supra, at par. 79. This increase in equity participation by the cable MSOs can be interpreted at further evidence of the leverage possessed by cable operators over program suppliers.

88. Of the 9600 cable systems operating in the United States, only 40 to 49 fact competing cable systems. 1990 Cable Report, supra, at par. 98.

89. 1990 Cable Report, supra, at par. 56. See also Competitive Issues in the Cable Television Industry, Subcommittee on Antitrust, Monopolies & Business Rights, Committee on the Judiciary, March 17, 1988 at 113-116; 152-157.

90. ESPN, the 24-hour all-sports service, is the exception. Independently owned, it nevertheless has leverage of its own due to the desirability of the service to cable audiences. I is significant, however, that its profitable relationship with the cable industry has led to situations where it has refused to deal with competing cable or multichannel delivery systems. See "Overbuilder Joins Dispute Over Ordinances," Multichannel News, Oct. 15, 1990 at 27 (involving refusal of ESPN to deal with second cable operator in Montgomery, Alabama, where there was an established relationship with the first franchisee).

91. Testimony of Ben Bagdikian, "Media Ownership: Diversity and Concentration," Hearings Before the Subcommittee on Communications of the Senate Committee on Commerce, Science and Transportation, rep. No. 101-357 101st Cong., 1st Sess., June 14, 21, and 22, 1989 at 88 [herein "Diversity Hearings"], reprinted in Senate Report, supra, at 22 (citation omitted).

92. Business Week, Oct. 26, 1987 at 88.

93. Senator Gore stated it as follows: "The simple point is the one made long ago by Lord Acton. Power corrupts and absolute power corrupts absolutely....The temptation comes out in many forms. There is a temptation to shake down programmers who want access and say cough up some of your ownership or else we will not let you on cable." Hearings on the Cable TV Consumer Protection Act of 1989, Subcommittee on Communications, Committee on commerce, Science and Transportation, United States Senate, 101st Cong., 2d Sess., March 29 and April 4, 1990 at 145.

94. "NBC Ponders Plan for Cable News Service," Broadcasting, Aug. 26, 1985 at 33-34.

95. Id.

96. Id. at 34.

97. Id.; "NBC Gives Outline," Broadcasting, Nov. 4, 1985 at 10.

98. "Glimmering Hopes," Broadcasting, Dec. 16, 1985 at 7.

99. "Malone to Join Board of Turner Broadcasting," Braodcasting, April 14, 1986 at 10.

100. See 1990 Cable Report, supra, at par. 120; Testimony of Robert Wright, Diversity Hearings, supra, at 609-610; Hearings on the Cable TV Consumer Portection Act of 1989, Subcommittee on Communications, Committee of Commerce, Science and Transportation, United States Senate, 101st Cong., 2d Sess., March 29 and April 4, 1990 at 142-143 [herein "Consumer Protection Hearings"].

101. 1990 Cable Report, supra, at par. 120.

102. Statement of Senator Albert Gore (Tenn.), Consumer Protection Hearings, supra, at 143.

103. See 1990 Cable Report, supra, at par. 123.

104. New York Citizens Committee v. Manhattan Cable, 651 F. Supp. 802 (S.D.N.Y. 1986). The plaintiff, a citizens group, alleged antitrust violations (Sherman Act), contractual breach of the franchise agreement, and violation of Section 612, the commercial leased access provision of the Cable Act, 47 U.S.C. Sec 532. The group argued that it was an "aggrieved party" within the meaning of Section 612(d( because "its members have been denied the diversity of pay television sources that was the underlying goal of the leased access requirements...." 651 F. Supp. at 813. While the court agreed that such a citizens groups was clearly one of the intended beneficiaries of the provision, it lacked standing under Section 612, which was in fact a remedy for cable programmers. Id. at 814. The court did find antitrust standing, however. Significantly, the case was eventually settled and the cable company agreed to carry an unaffiliated program service. Telephone interview with Robert T. perry, counsel for plaintiff New York Citizens Committee, Nov. 29, 1990.

105. USA Network v. Jones Intercable, 729 F. Supp. 304 (S.D.N.Y. 1990).

106. The lower court dismissed the lawsuit. Bello v. Cablevision Systems Corp., New York State Supreme Court, Suffolk Cunty, Index No. 19148-88, New York Law Journal, July 17, 1990, p. 30, Col. 1, appeal pending, App. Div. 2d Dep.

107. See Testimony of James Hedlund, Association of Independent Television Stations, Consumer Protection hearings, supra, at 12; Statement of CATA President Steven Effros that expanding channel capacity may be reaching the point of diminishing returns. Cmmunications Daily, Oct. 26, 1990 at 2. According to Paul Kagan Associates, 36 channels appears to provide the optimum capacity for cable operators. Marketing New Media, January 18, 1990.

108. See Pool, Technologies of Freedom, supra, at 168.

109. Some of the smaller cable systems have attempted to secure similar discounts through the formation of the National Cble Television Cooperative, founded in 1984. They have encountered enormous resistance, however, from many of the largest networks (such as HBO, Cinemax, ESPN, CNN, and USA), which refuse to deal with them. See Letter of Michael Pandzick to Senator Ernest F. Hollings dated March 27, 1990.

110. See Shooshan & Jackson, Economic Analysis of Concentrated Ownership of Cable Systems, July 18, 1986, at 1.

111. 1990 Cable Report, supra, at par. 71.

112. The FCC stated that in terms of national (horizontal) concentration, cable was relatively unconcentrated by traditional antitrust measures such as the Herfindahl-Hirschman Index (HHI). 1990 Cable Report, supra, at par. 75. But the FCC also stated that local concentration may be of more concern insofar as cable's ability to act anticompetitively. Id. at par. 76.

113. See Consumer Protection Hearings, supra, at 137-138.

114. Indeed, the benefits of horizontal concentration and vertical integration have been well documented. 1990 Cable Report, supra, at pars. 82-86; NCTA Comments in FCC MM Dkt. 89-600, March 1, 1990, at 55-56; Testimony of James Mooney, Oversight of Cable TV, Hearings before the Subcommittee on Communications of the Committee on Commerce, Science and Tansportation, No. 101-464, Nov. 16-17, 1989, at 178-179 [herein "Oversight Hearings"]; NTIA Report, Video Program Distribution and Cable Television, No. 88-233 (June 1988) at 90-93.

115. 1990 Cable Report, supra, at par. 127. See also Senate Report, supra, at 23-25.

116. See note 2, supra, Senate Report, supra, at 27.

117. Senate Report, supra, at 27.

118. See, e.g., 1990 Cable Report, supra, at par. 177; Report on the cable Television Consumer Protection and Competition Act of 1990, H.R. 5267, Rep. No. 101-682, 101st Cong., 2d Sess. at 34 [herein "1990 House Report"]; Oversight Hearings, supra, at 103, 395; Comments of NCTA in FCC MM Docket 89-600, March 1, 1990 at 92; Comments of NTIA in FCC MM Docket 89-600, March 1, 1990 at 28; Comments of Motion Picture Association of America (MPAA) in FCC MM Docket 89-600, March 1, 1990 at 19; Comments of the City of New York and the National League of Cities et al. (NY/NLC) in FCC MM Docket 89-600, March 1, 1990 at 70.

119. While Continental Cablevision did assert in its comments to the FCC that leased access users have offered programming "competitive with" basic services, the examples cited were all local services such as classified advertising, entertainment listings, and real estate information. Comments of Continental Cablevision in FCC MM Docket 89-600, March 1, 1990 at 104-105. Indeed, this type of channel leasing (with noncompetitive services) benefits cable operators for, if there is idle capacity, the system can earn additional revenue. See Pool, supra, at 181.

120. See text accompanying notes 88-102, supra.

121. Comments of NCTA in FCC MM Docket 89-600, supra, at 92. See also, Senate Report, supra, at 27 (answers to questions submitted to John Malone, TCI).

122. Id. at 93.

123. See, e.g., 1990 House Report, supra, at 34; Comments of MPAA in FCC MM Docket 89-600, supra, at 19; Comments of NYNLC in FCC MM Docket 89-600, supra, at 70; comments of NTIA in FCC MM Docket 89-600, supra, at 28.

124. Comments of MPAA, supra, at 19.

125. Comments of NY/NLC, supra, at 71. As NY/NLC points out, the need for such a policy is questionable given the fact that cable operators are immune from damages which result from leased access programming. See 47 U.S.C. Sec. 558.

126. Id. Prior to passage, Section 612 of the Cable Act was criticized for its failure to require that leased access channels be made available for part-time use, as they were initially envisioned by the FCC. See House Hearings, supra, Nov. 3, 1983, at 1105 (Statement of Ithiel Pool).

127. See proferred contract dated September 19, 1990, by Manhattan Cable Television, Inc. to Media Ranch, Inc. the programmer has now gone to court claiming numerous violations of Section 612 by the cable company. See complaint, Media Ranch, Inc. v. Manhattan Cable Television, Inc., Case no. 90-CIV-7218 (LBS), (S.D.N.Y.) filed Nov. 9, 1990.

128. Id. For example, Comcast Cablevision of Philadelphia, Inc. has a standard leased access rate of $175 per hour but increases its rate to $300 per hour if the program will compete with a basic service and $500 per hour if it will compete with a pay service.

129. House Hearings, supra, at 306.

130. Senate Report, supra, at 28.

131. House Report, supra, at 50.

132. Senate Report, supra, at 27; 1990 Cable Report, supra, at par. 180.

133. See House Report, supra, at 52; Cable Act Section 612(c)(2), 47 U.S.C. Sec. 532 (c)(2).

134. House Report, supra at 48. In fact, when Time Warner's Manhattan Cable Television recently discontinued its "leased public access channels," the excluded programmers had initially ruled out the use of commercial leased access channels precisely because cable operators could restrict content insofar as it may have been obscene or indecent. See "Cable in Manhattan May Lose Channels," The New York Times, Aug. 29, 1990 at A1. The programmer has now gone to court challenging the cable operator's requirement that programmers submit programming for prescreening by the cable operator. Goldstein and Media Ranch Inc. v. Manhattan Cable Television, Inc., 90 CIV-4750 (LBS),(S.D.N.Y.) filed July 18, 1990. See note 157 infra.

135. This does not necessarily mean that the rates will be the same for all users, however.

136. Comments of NCTA in MM docket 89-600, supra, at 93; Comments of MPAA in MM Docket 89-600, supra, at 19.

137. Ithiel de Sola Pool, Technologies of Freedom, supra, at 180.

138. 47 U.S.C. Sec. 532(b)(5)(A). Under this subsection, a channel is "activated" if it is engineered at the headend of the cable system. The legislative history distinguishes between "dark" channels (those not carrying programming although they are so engineered) and potential channel capacity (which could be available in the future).

139. Sierra East Television, Inc. v. Westar Cable Television, Inc. Case No. CV-F-90-698 EDP, (E.D. Cal., filed Nov. 13, 1990.

140. Sierra East Television, Inc., supra, Temporary Restraining Order and Order for Appointment of Expert, Nov. 21, 1990.

141. Implementation of the Provisions of the Cable Communications Policy Act of 1984, 50 Fed. Reg. 18,642, aff'd sub nom. ACLU. v. FCC, 823 F.2d 1554, 1576 (D.C. Cir. 1987).

142. Media Ranch, Inc., v. Manhattan Cable Television, Inc., Case No. 90-CIV-7128 (LBS), (S.D.N.Y.) filed Nov. 9, 1990.

143. This is not an insignificant barrier. The legal process is notoriously slow, even on an expedited basis which is by no means assured despite Congressional hopes to this effect in the legislative history. See House Report, supra, at 52. The programming industry, on the other hand, requires immediate action. A programmer cannot develop a new service and then postpone its introduction for several years while legal battle are being waged. Indeed, this burdensome enforcement mechanism goes a long way towards explaining low demand for access channels. See 1990 House Report, supra, at 35.

144. 47 U.S.C. Sec 532(f); House Report at 51.

145. 47 U.S.C. Sec. 532(d).

146. 47 U.S.C. Sec 532(e).

147. 47 U.S.C. Sec 532(g).

148. The FCC calculates that currently, 48.7 percent of U.S. television homes are passed by cable systems with 36 or more channels and that 57.3 percent of those homes subscribe. 1990 Cable Report, supra, at par. 178. the Association of Independent Television Stations filed a petition asking that the FCC act pursuant to the authority granted it under Section 612(g), Petition for Rulemaking and Supplemental Statement in Support of Petition for Notice of Inquiry, filed Oct. 23, 1989, but given how far we seem to be from the requisite levels under the Cable Act, no action is likely for years.

149. See Senate Report, supra, at 44. See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969); Metro Broadcasting v. FCC,_U.S._, 58 U.S.L.W. 5053 (1990).

150. See Shapiro et al., Cablespeech: The Case for First Amendment Protection, Harcourt Brace Jovanovich (1983). The cable industry cites to Miami Herald v. Tornillo, 418 U.S. 241 (1974), a newspaper case.

151. See, e.g., Preferred Communications v. Los Angeles, Case No., CV 83-5846 (CBM)(C.D. Cal. June 5, 1990)(Slip op.)(provisions improper); Chicago Cable Communications v. Chicago Cable Commission, 879 F.2d 1540 (7th Cir. 1989), cert. denied,_U.S._, 58 U.S.L.W. 3447 (Jan. 16, 1989)(provisions upheld); Group W Cable, Inc. v. City of Santa Cruz, 669 F.Supp. 954 (N.D. Cal. 1987)(impermissible). The Supreme Court has not yet considered the First Amendment ramifications of enforced leased access.

152. 1990 House Report, supra, at 35; Senate Report, supra, at 46.

153. 391 U.S. 367 (1968).

154. See Quincy Cable TV v. FCC, 768 F.2d 1434, 1450 (D.C. Cir. 1985).

155. O'Brien, supra, at 31.

156. House Report, supra, at 31.

157. The exception here is Section 612(h), 47 U.S.C. Sec. 532(h), which is directed at preventing "lewd, lascivious, filthy or indecent..." speech. This provision is clearly content based and has its genesis in concern over "filth" in cable. See CableVision, Dec. 5, 1983 at 18. Not only are procedural guidelines completely lacking in order to prevent censorship of constitutionally protected speech, the provision is overbroad and unsupported even by cases which permit such indecency regulation on other media so as to protect unsupervised children. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978). For a more detailed discussion, see Lee, "Cable Leased Access and the Conflict Among First Amendment Rights and First Amendment Values," 35 Emory Law Journal 563, 594-599 (1986). On this basis, Section 612(h) appears outside of the bounds of constitutionality although the same arguments have been unsuccessfully made about 18 U.S.C. Sec. 1464 (prohibiting obscenity, indecency, and profanity). In an effort to ensure no "indecent" or "obscene" matter airs on its cable system, one cable operator actually prescreens programming for public and leased access channels. The program lessee has gone to court citing Section 612(c)(2) of the Cable Act, which prohibits cable operators from exercising editorial control over leased access programming. Goldstein and Media Ranch, Inc. v. Manhattan Cable Television, Inc., at note 134 supra.

158. See Pool, Technologies of Freedom, supra, at 127. Traditional common carrier providers have now begun to assert their own First Amendment right to speak over their monopoly facilities. See USA v. Western Electric, Civ. No. 82-0192 (D.D.C.), Request of Pacific Telesis for a Waiver to Permit It to provide Cable Televison Services in Chicago, Illinois, filed Dec. 19, 1989.

159. But see Preferred Communication v. City of Los Angeles, supra. There, the Court found that the leased access channel requirements were "not incidental" and therefore the court subjected the provisions to a stricter constitutional test: whether there was a compelling interest and the regulations were precisely drawn to futher that interest. While the court found there was a compelling governmental interest, the particular leased access requirements were not "precisely drawn to further these interests" since the number of dedicated leased access channels was considered arbitrarily high and not based upon need. Slip op. at 50.

160. See note 11, supra. See also House Report, supra, at 31.

161. Red Lion Broadcasting v. FCC, supra, 395 U.S. at 390.

162. Metro Broadcasting, Inc. v. FCC, supra, 58 U.S.L.W. at 5058 1990).

163. See Lee, "Cable Leased Access and the Conflict Among First Amendment Rights and First amendment Values," supra, at 603; Preferred Communications v. Los Angeles, Case No. CV 83-5846 (CBM), supra, Memorandum Order, issued Jan. 5, 1990 at 29.

164. Senate Report, supra, at 46. See also 1990 House Report, supra, at 35.

165. See U.S. v. Albertini, 472 U.S. 675, 689 (1985).

166. Quincy Cable TV, supra, at 1459.

167. 1990 Cable Report, supra, at pars. 181-182.

168. Id.

169. 1990 Cable Report, supra, at par. 183.

170. Id.

171. Id. Not surprisingly, many localities have urged that they be given original jurisdiction to resolve these disputes. See Comments of NY/NLC in MM Docket 89-600, supra, at 75.

172. 1990 Cable Report, supra, at par. 183.

173. H.R. 5267, 101st Cong., 2d Sess., passed September 10, 1990.

174. Section 14(a), "Cable Channels for Commercial use," H.R. 5267, supra.

175. Id.

176. Id. at subsection (i)(1). For purposes of the legislation, a "qualified minority programming source" is a "programming source which devotes significantly all of its programming to coverage of minority viewpoints, or to programming directed at members of minority groups and which is over 50 percent minority owned...." Section 14(i)(2).

177. 1990 Cable Report, supra, at par. 180.

178. See text accompanying note 45, supra.

179. S. 1880, "Cable Television and Consumer Protection Act of 1990," supra, note 2.

180. Senate Report, supra, at 64.

181. Senate Report, supra, at 64.

182. S. 1880, supra, at 612(a).

183. See note 5, supra.

184. Comments of NTIA in MM Docket 89-600, supra, at 28-29.

185. And this is a big "if," as legislative efforts in this regard have been repeatedly frustrated. See, e.g., "Communication Competitiveness and Infrastructure Modernization Act of 1990," S. 2800, supra, introduced June 1990 but stalled due to intense opposition.

186. See 47 U.S.C. Sec 558; Farmers Educational and Cooperative Union v. WDAY, 360 U.S. 525 (1959). Similarly, all prescreening would be explicitly barred. See note 157 supra. See also Playboy Enterprises v. Public Service Commission, 906 F.2d 25,38 (1st Cir. 1990)(without immunity from liability, mandatory access would be defeated).

187. Children's Television Act of 1990, P.L. 101-437, enacted Oct. 18, 1990, at Sec 102(d).

188. See Besen & Johnson, An Economic Analysis of Mandatory Leased Access, supra, at 70.

189. This would take into consideration the Congressional concern that all users should not be paying the same rate -- that is, a church groups and a premium movie service should not pay the same per-channel cost. See house Report, supra, at 51. this is similar to the teatment of telephone customers; residential users pay different rates than business customers. In 1983, one commentator suggested a differential rate scheme for a common carrier cable structure whereby all lessees pay a minimum lease rate and commercial lessees additionally pay a percentage lease rate based on gross revenues. See Nadel, "COMCAR: A Marketplace Cable Television Freanchise Structure," 20, Harvard Journal on Legislation 541 (1983).

190. See Pool, Technologies of Freedom, supra, at 187.

191. See, e.g., Senate Report, supra, at 27 (Responses of Messrs. Mooney and Robbins).

192. See Besen & Johnson, supra, at 24-40. Whether the access fee is implicit or explicit may depend upon the nature of the service. For instance, advertiser-supported services which have an incentive to expand their advertising base may be better off paying an explicit access charge. Pay services, however, may be better off with implicit access charges where the cable operator's transaction costs are lower. Id. at 27, 31.

193. See Maislin Industries v. Primary Steel, 497 U.S._, 110 S. Ct. 2759 (June 21, 1990).