concurring with reservations:
After grappling in recent months with several eases involving the application of the First Amendment in the context of Government regulation of “indecent” speech in the broadcast media, see, e.g., Action for Children’s Tel. v. FCC, 11 F.3d 170, 183-86 (D.C.Cir.1993) (Edwards, J., concurring); Alliance for Community Media v. FCC, 56 F.3d 105, 110-11 (D.C.Cir.1995) (en banc) (Edwards, C.J., dissenting in part); Action for Children’s Tel. v. FCC, 58 F.3d 654, 670-83 (D.C.Cir.1995) (en banc) (“ACT III") (Edwards, C.J., dissenting), I have come to the conclusion that the law is in a state of disarray. Application of the First Amendment in this context seems to border on whimsical, for as often as not there is little coherence in the case law. For example, I have yet to comprehend the distinction that is drawn between broadcast and cable television, with broadcast stations having reduced First Amendment rights even though cable is coneededly much more responsible for the showing of indecent programming. This is but a tip of the iceberg, so I will not dwell on my incredulity.
I join the majority opinion, because, absent any aspirational gloss, I believe that it is essentially correct in stating and applying extant law. This is not to say that the extant law makes any sense when considered carefully, but that is a matter beyond my authority-
My concurrence comes with a caveat, however. Not surprisingly, the majority opinion is underscored by several references to FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). However, insofar as Pacifica commands a distinction in the treatment of broadcast and cable media in the application of the First Amendment, I think that it has no place in our constitutional jurisprudence. See ACT III, 58 F.3d at 672-77 (Edwards, C.J., dissenting). Indeed, although the Supreme Court declined to revisit Pacifica in its recent decision in Turner Broadcasting System, Inc. v. FCC, — U.S. —, —-—, 114 S.Ct. 2445, 2456-57, 129 L.Ed.2d 497 (1994), I do not understand how the two opinions can stand together. Although I reject Pacifica, I do not doubt that the Government can regulate “indecent” speech, so long as “the Government’s interests [are] ‘compelling,’ and the method of regulation chosen [is] ‘the least restrictive means’ to achieve those compelling interests.” ACT III, 58 F.3d at 677 (Edwards, C.J., dissenting) (quoting Sable Communications, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989)). Under this standard, I believe that, in order to justify the regulation of indecency, the Government must show that the “harms” it seeks to prevent “ ‘are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.’” Id., 58 F.3d at 680 (quoting Turner Broadcasting, — U.S. at —, 114 S.Ct. at 2470). There is no showing of harm in this ease, so I remain doubtful about the constitutionality of sections 503(b) and 504(a) of the Communications Act, 47 U.S.C. §§ 503(b), 504(a) (1988).
At bottom, there are two reasons why the concerns that I expressed in ACT III do not carry the day for me here. First, the principal claim of the appellants in this case is that the FCC’s delay in enforcing the statute allows the agency to take action against them without affording them the procedural safeguards necessary to avoid any abridgement of their First Amendment rights. This position implicitly assumes that the regulation itself is constitutionally permissible, so the points that I addressed in ACT III do not come into play in this case. Second, in ACT III, a majority of the en banc court indulged a presumption that exposure to indecent speech always is harmful to minors. I disagree with this finding, for, in my view, it rests on a baseless proposition. Nonetheless, ACT III is the law of the circuit, so I am bound by the court’s holding in that decision.
I agree with the majority opinion that there are some serious problems with the current practice followed by the FCC in administering sections 503(b) and 504(a), and that “the agency’s practices could give rise to some of the evils that the appellants claim are already in hand.” Appellants cannot prevail in this case, however, because they have failed to show that speech that is not inde*1264cent is in fact being chilled. If such a claim is supported in the future, the parties will face a different result.
I conclude with an innocent hope that the Supreme Court will one day soon lend some clarity to these areas of First Amendment jurisprudence. And with that hope, I concur.