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• Memorandum March 30 , 1988 Page 5 Further, the determination of obscene material must be made on a case-by-case basis . In other words, the city could not merely forbid the transmitting of channel 34 or adult programming in general , but each work would have to be reviewed by the decision-makers to determine whether, in their opinion, the work was obscene. Since the Company could sue and request a judicial in- terpretation as to whether a work is "obscene" , the cities could have a major constitutional legal challenge on their hands regarding each work offered on cable channel 34. Your franchises refer to the exclusion of pornographic material (a lower standard than "obscene" ) . The Federal Communications Policy Act does not explicitly authorize a franchising authority to regulate material which is porno- graphic, however , it does permit the regulation of porno- graphic material in the 'franchise agreement in. the event that such pornographic material , like obscene material, is determined to be not protected by the Constitution and pro- vided over the cable system. Section 624 (d) (1) . The prob- lem with this Section is that it permits a franchising authority to regulate the carriage of pornographic material , provided that such regulation of pornographic material is subsequently found to be constitutionally permissible by a court of law. Assuming that a court of law would apply the Miller test , it is highly improbable that any such attempt at regulation would be upheld. The Senate Report accompanying an early version of Senate Bill 66, a precursor to the Cable Communications Policy Act of 1984 , suggests that "the Imposition of sanc- tions for the determination of a breach of the franchise in the absence of a judicial determination that particular speech was obscene or otherwise unprotected by the Constitu- tion, " was not permitted. S. Rep. No. 98-67 , 98 Con. , 1st Sess. 25 (1983) . However, similar language was not included in the House Report and is therefore not definitive legisla- tive history for the Act . It does indicate that there was discussion regarding the prior restraint of otherwise pro- tected "speech" , and a representative of the Company could argue that, absent a prior judicial determination as to the protection of pornographic material by the Constitution, a local authority could not regulate that material.