Cable is a particularly controversial area of regulation. Congress and the FCC, upheld by the Supreme Court, have never stopped interfering in the cable industry, but the main rationale justifying broadcast regulation, scarcity is entirely lacking because cable does not use the broadcast spectrum and the only limit on the number of channels is the bandwidth of the wire entering your home.

The pervasiveness rationale is also a shaky one for cable, given that (unlike radio waves) it is considered an "invited guest" in the home.

The Supreme Court, egged on by legal scholars and public affairs commentators, has been acknowledging for many years that it will have to rule on the rationale for cable regulation one of these days. Its most recent utterance was in Turner Broadcasting v. FCC, a challenge to the rule requiring cable providers to carry broadcast stations. The Supreme Court, in remanding the case for further consideration, noted that there seemed to be a significant rationale for treating cable like the press, rather than like broadcast television.

In the meantime, Congress, emboldened by its successful attack on telephone and broadcast indecency, passed a 1992 law ordering cable providers either to ban indecent speech on leased and public access channels, or to institute "reverse blocking" (see channeling). In Alliance for Community Media v. FCC, a three judge panel of the Appeals Court for the District of Columbia over-ruled the law as an unconstitutional limitation upon indecent speech, which the Supreme Court had ruled in Pacifica Foundation v. FCC could not be banned from the airwaves entirely. The judges also noted that indecency laws ban material with scientific, literary, artistic and political value, and that it was unfair for Congress to apply these laws only to leased and public access channels and not to the materials broadcast by the cable companies themselves. (Most of the channels you recieve via your cable box are owned and operated by the same company that ran the wire to your house and rents you the box. Congress requires the cable provider to lease channels to competitors and provide an inexpensive public access channel as well.)

In an unusual move, the entire Appeals Court vacated the three judge ruling and re-heard the case. A year later, the court ruled that the 1992 Cable Act was constitutional in all respects.

The question of whether an access provider can ban indecent speech turns on the issue of whether government action is involved. Under Pacifica, Congress clearly could not ban indecent speech on cable. The 1992 act cleverly gave access providers a choice: either ban indecency or engage in reverse blocking. The Appeals Court held that this was sufficient to translate illegal state action into legitimate private action. It even called the decision by a cable company not to broadcast indecent programs an exercise of its own free speech rights.

The problem with this is that cable is a monopoly. In this country, Congress has traditionally treated monopolistic forms of electronic communication, such as the telegraph and telephone, as common carriers. This means that they do not have the right to refuse any speech whatever. Treating a cable company as a publisher means that in theory it has the right to decide that no feminist or Democractic party speech will be heard in the home--while no-one else has the right to found a competing cable company to oppose this.

Most cable providers offer a set top device that will allow parents to block out certain programming. Although the courts are supposed to look for the least restrictive alternative in considering laws applying to speech, they have rejected the set top box as an alternative to indecency bans or reverse blocking. Using an ignorant and technophobic argument--the same one applied by Senator Exon to the Internet--they have said that set top boxes are burdensome, expensive and complicated to operate. Congress' recent mandate to television manufacturers to install a v-chip allowing the blocking of violent programming contradicts this line of thought.

The treatment of cable by Congress and the courts has resulted in an unsatisfactory hybrid. Speech on cable is somewhat freer than on television or radio, but not as free as the press.