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Memorandum March 30, 1988 Page 6 V. COURT HISTORY REGARDING LOCAL ORDINANCES ON OBSCENITY Even though the attempt to regulate adult programming would in all probability not survive constitutional First Amendment scrutiny, some local officials have asked whether they could enforce their local franchise ordinances in which the Company has agreed not to cable cast pornographic pro- gramming. Local ordinances which have been drafted to pre- vent obscene or indecent cable programming have not survived scrutiny by the courts. Roy City, Utah, had passed an ordi- nance which permitted the revocation of cable franchise permits or the imposing of fines for "knowingly distrib- uting] any pornographic or indecent material as defined by law or in violation of the community standards." In Com- munity Television of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1984), the court held the Roy City ordinance to be unconstitutional. The Roy City court distinguished between broadcast television and cable television. The court stated that cable signals are "invited" into the home while broad- cast signals are not. The court stated that broadcast tele- vision "is pervasive because its medium, the air, is perva- sive. Transmission by wire is not." Roy City at 1169. The United States District Court for the Southern Dis- trict of Florida enjoined the City of Miami from enforcing its ordinance which prohibited the distribution of indecent material over cable television. The City was also enjoined from implementing procedures established to enforce this prohibition. In Cruz v. Ferre 571 F. Supp. 125 (S.D. Fla. 1983), the court held the city ordinance to be unconstitu- tional since the provisions of the ordinance which tried to regulate indecent material exceeded permissible limits for the regulation of obscenity as set forth by the Supreme Court in Miller v. California. Again the court relied on the ability of the consumer to control whether or not they chose to receive cable television signals. Therefore, although the member cities could choose to attempt to enforce their franchise ordinance, a court would likely conclude that the enforcement of the ordinance in an attempt to restrict the First Amendment rights of the Com- pany would be unconstitutional and therefore impermissible.