Copyright © 1996 Playboy Enterprises, Inc.
Section 505 is an additional scrambling requirement that mandates cable companies offering channels "primarily dedicated to sexually oriented programming" to install expensive equipment by March 9, whether or not a viewer requests the scrambling. The alternative is to sharply limit the hours when such programming is available. Section 505 was added hastily and without discussion by the Senate.
"The issue is not whether to scramble," said Christie Hefner, chairman and CEO of Playboy Enterprises, Inc. "Playboy has always agreed that individuals or parents should be able to request scrambling. Effective scrambling technology is available and in use today."
Hefner pointed out that federal law already requires cable operators to provide lockboxes on demand that can block any selected channels. In addition, Section 504 of the Telecommunications Act accomplishes the same thing as Section 505 by requiring that, at the customer's request, cable companies fully scramble the audio and video of any programmer.
Historically, unwanted video or audio signals leaking into subscribers' homes has not been a widespread problem. When a complaint is received, however, most cable operators fix it immediately. In fact, the California Cable Television Association and the National Cable Television Association called on their members to provide voluntary blocking on demand and free of charge. This solution was adopted in Section 504 of the Act and Playboy strongly endorses it.
However, Section 505 applies only to programmers who provide "primarily sexually oriented content," in spite of the fact that the same and similar movies appear on other premium and pay-per-view channels.
Some Playboy programming also appears under licensing arrangements on such other premium cable channels as Showtime/The Movie Channel and HBO/Cinemax; yet cable operators under Section 505 would be only required to limit viewing of the Playboy channel.
"The problem with the language in the bill is that it reaches beyond what is necessary, is economically burdensome to cable consumers and operators and is not equally applied to all content providers," Hefner said.
The discriminatory nature of Section 505 does not end there. For example, although Congress concluded that violent programming is worse for children, it adopted the V-Chip, which was described as a voluntary solution. In Section 505, by contrast, Congress forced involuntary scrambling on networks such as Playboy, which contains no violence. Playboy believes that if a voluntary solution is sufficient to deal with violent programming, it should be sufficient for other adult programming.
Under Section 505, cable companies were given 30 days, or until March 9, to install either traps or converter boxes in millions of cable homes. Neither option is practical or economically feasible. A trap would prevent many households from receiving any pay-per-view programming such as boxing matches or concerts, and the installation cost could exceed $300 million.
The installation of addressable converters on televisions of subscribers in cable systems carrying adult network programming would cost more than $1 billion. Under FCC cable rate regulations, such involuntary costs could be passed on to consumers, including U.S. households with no children under the age of 18 -- an estimated two-thirds of all households. That could mean significantly higher costs to cable consumers.
Cable companies that cannot comply have only one alternative -- to remove adult programming from up to two-thirds of the broadcast day, restricting programming choices for a substantial number of viewers and damaging the revenues of cable companies and the Playboy Entertainment Group.
"As technology allows a multiplicity of programming options to come into the home -- whether via satellite delivery or the Internet -- the appropriate governmental response is not prior restraint or limiting choices to material suitable for children, but rather to require delivery industries to make available technical options for parents to control what comes into their homes," Hefner said.
Playboy's lawsuit, filed yesterday in U.S. District Court in Delaware, seeks a temporary restraining order and a preliminary injunction to halt implementation of Section 505.
In its suit, Playboy notes that neither its magazine nor its programming has ever been found obscene, harmful to minors or in violation of any community standards.