A U.S. District Court has ruled that Tele-Communications
Inc. was justified in removing four PEG-access (public, educational and government)
programs from its system in Seattle for airing obscene material.
Experts called the decision a victory for TCI and other
operators. In the past, operators could only pull obscene programming off public-access
channels at the risk of being sued for allegedly violating programmers' First
Amendment rights.
"We were looking for a yardstick as to what was
obscene and what wasn't -- what we would put on the air and what we
couldn't," said Stephen Kipp, director of communications for TCI Cablevision in
Seattle. "This gives us a little more authority in determining what's
obscene."
Judge John Coughenour found that TCI was justified in
yanking Mike Hunt's Get Your Friend LaidTonight and The Mike Hunt
Show, along with Fulfilling Your Fantasies and Adventure TV, because
producers Mike Aivaz and T.J. Williamson had violated their initial programming agreements
with the MSO.
Aivaz, in fact, violated a secondary agreement that
restored his broadcast privileges in exchange for a promise to refrain from depicting
"ultimate sexual acts ... actual or simulated." His programming is now
permanently off the air.
Meanwhile, Williamson's programs are back on
TCI's lineup, but only as long as he complies with the same agreement.
"The judge was saying that as a public-access manager,
a cable operator can say, 'Thou shalt not run obscenity, and if you do, you lose your
programming privileges,'" TCI attorney Marshall Nelson said. "This gives
cable operators the right to set those basic standards, and it clearly gives operators the
right to enforce them."
In finding the programs obscene, Coughenour depicted
Aivaz's offerings as "wallowing in adolescent sexual retardation," while
Williamson tried a more "sophisticated wrapper" by conducting discussions on the
"artistic" merits of a film.
"TCI questions the sincerity of Williamson's
high-mindedness," he wrote.
Kipp said TCI has never prescreened any PEG-access
programs, and it would not in the future.
"We're not going to change that," he added.
"We don't want any appearance of censorship."
In response to complaints from subscribers, TCI filed the
lawsuit in May, alleging that the programs "expressly promote pornography," and
that they were edited to delete portions that are "not graphic depictions of explicit
sexual conduct."
It asked the court to find that the programs were obscene,
therefore supporting the MSO's initial decision to drop them from its channel lineup.
Nelson said the MSO acted because it was caught
"between a rock and a hard place."
Under the Telecommunications Act of 1996, operators cannot
exercise editorial control over what appears on PEG-access channels. But at the same time,
they're required to keep pornography off their cable networks or they face being
found criminally liable.
The situation was made even worse for TCI in Seattle when
city officials refused to get involved in the controversy, insisting that it was the
MSO's headache "as designated access manager for the public-access
channel."
Aivaz and Williamson could take the ruling to the Ninth
Circuit Court of Appeals, where they can ask for a review of the obscenity ruling.
Moreover, they could ask the court to examine Coughenour's refusal to rule on the
procedures employed by TCI in deciding to yank their programming.
