NCTA's litigation position in Alliance. As a third-party intervenor, NCTA could have entered the Alliance case for any number of reasons. In fact, it is not inconceivable that NCTA intervened in order to challenge the Section 10 implementing regulations or otherwise represent interests directly adverse to Viacom's current interests. Without more information regarding NCTA's position in that case, the court cannot give any weight to plaintiffs' collateral estoppel argument.
At this stage of the proceedings, plaintiffs have not raised serious questions with arguments based on the District of Columbia Circuit stay.
Viacom's system itself has a number of characteristics that, plaintiffs argue, make the system unconstitutionally restrictive. The first argument is that to the extent Viacom plans to make the producers of indecent speech on leased access pay for all the "reasonable" costs of segregating such programming from the leased access channel, Viacom's plan violates the First Amendment. Viacom has stated that it will not charge any of the added costs of segregation to its leased access or public access program providers or to its subscribers. Marx Supp. Decl., p. 4. Therefore, plaintiff cannot succeed on the merits of this argument.
The second argument is that Viacom must provide sufficient notice to its subscribers regarding the content and availability of segregated and scrambled channels. Viacom's segregation plan must include adequate notice to current and future subscribers describing the content and availability of the new channels to make Viacom's plan the "least restrictive" means of regulation and therefore constitutional. Such a notice must, at a minimum, have the following general characteristics: (1) it must describe the content of the segregated and scrambled channels in an accurate and fair manner and the language of these descriptions must be carefully tailored to avoid creating an unnecessary "stigma" on the segregated channels; (2) it must be provided to all subscribers within a reasonable time upon the creation of the segregated channels; (3) it must be displayed in a prominent manner; and (4) it must inform subscribers that the channels will be unscrambled at their request at no cost.
The need for this type of notice is clear. Viacom must implement the "least restrictive" method of regulation. If the above notice is not provided, the broadcasters that have had their programs placed on the segregated channel risk losing their current viewers and are unduly inhibited from gaining a larger adult viewing audience. Plaintiffs have not made a showing to the court that Viacom will not comply with the adequate notice described by the court. The notice system and time for implementation described in Jonathan Marx's supplemental declaration in opposition to the motion for preliminary injunction meet the standards outlined by the court. Therefore, the plaintiffs' claims of a system which is unconstitutional because of its application by Viacom are without merit.
To the extent plaintiffs have shown a likelihood of success on the merits of their First Amendment claims, plaintiffs have also satisfied the irreparable injury requirement for a preliminary injunction. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Thus, in the Ninth Circuit, "a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim." Viacom International, Inc. v. Federal Communications Commission, 828 F. Supp. 741, 744 (N.D. Cal 1993) (citing San Diego Committee v. Governing Board, 790 F.2d 1471 (9th Cir. 1986)).
Public access plaintiffs are entitled to this presumption of irreparable harm because they have shown that Section 10(c), the solitary source of Viacom's authority to regulate indecent material on public access cable, likely violates the First Amendment. Any conduct Viacom takes pursuant to Section 10(c) will cause irreparable harm to public access plaintiffs' First Amendment rights.
Leased access plaintiffs have not even raised serious questions regarding the constitutionality of Section 10(b) and its regulations. Therefore, leased access plaintiffs are not entitled to preliminary injunctive relief to prevent Viacom from complying with those federal laws.
In sum, public access plaintiffs are likely to succeed in showing that Viacom has no authority to regulate indecency on public access cable and that any attempt to segregate indecency from public access is a violation of public access plaintiffs' First Amendment rights. Public access plaintiffs are therefore entitled to preliminary injunctive relief.
Leased access plaintiffs will likely succeed in showing that the total ban of indecent material on leased access cable authorized by Section 10(a) is a violation of the First Amendment. Viacom's authority to segregate and scramble indecent material from leased access cable must depend solely on Section 10(b) and its implementing regulations.
For the above reasons, the court hereby GRANTS plaintiffs the following preliminary injunctive relief:
1. Viacom is enjoined from totally banning indecent material from public access or leased access cable under the Alliance case analysis of Sections 10(a) and (c) of the Cable Television Consumer Protection and Competition Act of 1992.
2. Viacom is enjoined from attempting to segregate or otherwise utilize its editorial discretion to regulate indecent material on public access cable;
3. Viacom is enjoined from using its editorial discretion to regulate indecent material on leased access cable unless it is pursuant to Section 10(b) and its implementing regulations;
4. Pursuant to Federal Rule of Civil Procedure 65(c), plaintiffs shall post a total bond in an amount to be set by the court after counsel in this case meet and confer and recommend to the court jointly or separately the appropriate amount of the bond. The recommendation and supporting briefs, limited to 5 pages each, shall be filed with the court no later than April 7, 1994.
5. All equitable relief requested by plaintiffs, except the relief specifically granted in items 1, 2, and 3 above, is hereby DENIED.
IT IS SO ORDERED.
Barbara A. Caulfield
United States District Judge