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The document provides answers to frequently asked questions related to the implementation, management, and use of public, educational, and government access channels. The content of the document is a compilation from many different sources. These sources, where readily identifiable, are listed.
*** WORK IN PROGRESS ***
This is a work in progress document and subject to revision at any time. Errors, comments, or suggestions should be sent to info@gatvinstitute.org.
DISCLAIMER
This document is prepared as a resource for further research. Opinions
offered in this document are subject to revision and are not to be considered as
legally valid arguments. GATV Institute does not accept responsibility for any
errors or omissions.
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2.1 What laws govern public, educational, and government access channels?
The US Code, Title 47, Section 531, defines these channels and establishes rules for their implementation. The entire section of this code, as of April, 2001, is:
Section 531. Cable channels for public,
educational, or governmental use
(a) Authority to establish requirements with respect to designation
or use of channel capacity
A franchising authority may establish requirements in a franchise
with respect to the designation or use of channel capacity for
public, educational, or governmental use only to the extent
provided in this section.
(b) Authority to require designation for public, educational, or
governmental use
A franchising authority may in its request for proposals require
as part of a franchise, and may require as part of a cable
operator's proposal for a franchise renewal, subject to section 546
of this title, that channel capacity be designated for public,
educational, or governmental use, and channel capacity on
institutional networks be designated for educational or
governmental use, and may require rules and procedures for the use
of the channel capacity designated pursuant to this section.
(c) Enforcement authority
A franchising authority may enforce any requirement in any
franchise regarding the providing or use of such channel capacity.
Such enforcement authority includes the authority to enforce any
provisions of the franchise for services, facilities, or equipment
proposed by the cable operator which relate to public, educational,
or governmental use of channel capacity, whether or not required by
the franchising authority pursuant to subsection (b) of this
section.
(d) Promulgation of rules and procedures
In the case of any franchise under which channel capacity is
designated under subsection (b) of this section, the franchising
authority shall prescribe -
(1) rules and procedures under which the cable operator is
permitted to use such channel capacity for the provision of other
services if such channel capacity is not being used for the
purposes designated, and
(2) rules and procedures under which such permitted use shall
cease.
(e) Editorial control by cable operator
Subject to section 544(d) of this title, a cable operator shall
not exercise any editorial control over any public, educational, or
governmental use of channel capacity provided pursuant to this
section, except a cable operator may refuse to transmit any public
access program or portion of a public access program which contains
obscenity, indecency, or nudity.
(f) ''Institutional network'' defined
For purposes of this section, the term ''institutional network''
means a communication network which is constructed or operated by
the cable operator and which is generally available only to
subscribers who are not residential subscribers.
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2.2 What is a "franchising authority?"
Any organization within the state that has been granted the authority over franchise agreements with the cable operators. This is, usually, cities, counties, municipalities, or other organizations created by them.
2.2.1 What is a "franchise fee?"
Under the Cable Communications Policy Act of 1984, a franchise fee is "any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status." 47 U.S.C. 542(g)(1). However, for franchises granted after October 31, 1984, a franchise fee does not include "capital costs which are required by the franchise to be incurred by the cable operator for public, educational, or governmental access facilities." 47 U.S.C. 542(g)(2)(C). See FCC Order and FCC Order.
2.3 Can the franchising authority force the cable operator to provide PEG access?
In US
Code 47 541(a)(4)(b), it says:
"(4) In awarding a franchise, the franchising authority -
...
(B) may require adequate assurance that the cable operator will provide adequate
public, educational, and governmental access channel capacity, facilities, or
financial support;..."
In US
Code, Title 47, Section 531(b) Enforcement Authority, it says:
"(b) A franchising authority may enforce any requirement
in any franchise regarding the providing or use of such channel capacity. ..."
The operative word is "may" and the it is between the franchising authority and the cable operator as to what is contained in the agreement. The franchising authority may choose not to exercise the rights implied by this regulation. The franchising authority may choose not to enforce the requirements of the franchise agreement.
2.4 Isn't the franchising authority required to provide a public, educational, or government access channel?
Absolutely not! The wording of US Code, Title 47, Section 531 states, in part, "A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent provided in this section." The operative word is "may."
2.5 Where can I find legal references to PEG Access?
There are many, many sources for legal information. Some are:
2.6 What are the legal bodies that control PEG Access?
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Legislative |
Executive |
Judicial |
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Federal |
U.S. Congress |
Federal
Communications Commission |
Supreme Court |
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State/District |
State House |
District Court |
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Local |
City Council |
Mayor, Local Cable Commission |
Judges |
It is entirely up to the city as to what they choose to do with channels authorized in the franchise agreement. The regulations stipulate the word "may" rather than "shall."
2.8 I cannot get the city to work with me to create a public access channel. What can I do?
If the city chooses not to have a public access channel, your recourse is through the courts or the election process. Your best bet, however, is to create a grass-roots demand for access that convinces local governments to support access. This is done most effectively through participation and cooperation with local government and not through intimidation, name calling, and threats.
2.9 Isn't the lack of a public access channel a violation of the free speech rights guaranteed by the First Amendment?
Not likely. For this to be a violation, the city must first create the "public forum" and then unreasonably deny your access to it. Even this is questionable because the courts appear to make distinctions related to government owned public forums versus privately owned public forums. If the channel does not exist, then the public forum has not been created and you have no right to claim a violation of free speech rights in a forum that does not exist.
A public access channel is a public forum but ownership of that forum may determine what rights you have to use it. There is considerable case law that prevents franchise authorities and cable operators from removing a public access channel once it has been created.
This might explain why many cities will not create a public access channel in the first place.
2.10 Is there a number to call if a new group wants public access in their area?
Yes, and it is your local government officials. Public, educational, and government access is controlled by the franchise agreement between government and the cable operator. In general, the government is your first point of contact. The City Attorney's office should be able to tell you who administers the franchise agreement.
2.11 Why isn't there a legal fund available, along with seasoned experts whose mission it is to provide the guidance, paperwork, and everything needed to win the fight for access?
Nothing in "legal" is free so there is no fund. The seasoned experts are available in organizations such as the ACLU and the Alliance for Community Media (ACM). These organizations are your last resort when working through normal channels does not help you win the fight for access.
You must, however, realize that these organizations will not help you if you don't have a good case and/or there are no funds to "fight the fight." The ACM, for example, is funding through membership fees, grants, and other limited resources. At a minimum, you should be a member of these organizations before you can expect to obtain any help.
2.12 Why do we always have to go through the same red tape all by ourselves?
Because every case is decided on its own merits. Just because one city is granting access within its community does not mean that your city must grant access.
2.13 Are there "strike forces" in place to help my group gain access?
No. Get real!
2.14 Why should an average citizen who is not funded or otherwise rewarded, have to be stressed out and forced to go through this agony in order to air a few videotapes?
The secret to gaining access is grass roots organization and support within your community. If you don't have access, then you need to build enough grass roots support so that you can convince local government that you are important enough to be heard and to merit the expenditure of franchise fees on behalf of your access interests.
2.15 Why should I worry that if I make a mistake or say the wrong things that public access will be set back years?
If you want access, then you must learn to play by the rules. In our great country, everyone has a legal right to challenge existing rules. This is done through the courts. If I have something that you want, it is my choice whether or not I give it to you. If I choose not to grant what you want, then you have the right to file suit. What you must understand is that you have no rights when it comes to my property unless the court intervenes.
There have been many cases of abuses of public access channels. Cable operators and franchising authorities, for the most part, want to work together in harmony for the good of the people. When community groups ban together to scream about public access, or write threatening letters demanding their free speech rights, this does nothing to foster good will and cooperation. Once a group starts down this road, it is unlikely to ever result in anything positive unless through the courts. Much of this is human nature. If you ask me nicely for a favor, you may get it. If you demand a favor and fight me for it, I am very unlikely to grant any favors in the future unless I am forced.
Remember that, in seeking to obtain support from any person or group, you must consider what is to be gained by that person or group. You must appeal to their self interests and not your own. If you constantly demand your rights under the First Amendment, you are likely to be ignored like a gnat swarming on an elephant.
If you want to set public access back years in your community, go about trying to get access by threats, intimidations, name calling, and the spewing of vile, hatred, innuendo, and falsehoods. The people you attack will remember your actions every time someone in the future requests public access. You will fail and the chances of access anytime in the future will be destroyed because of your untimely, unprofessional, and uneducated approach to the issue. Only when the people you have attacked are all voted out of office or retired, will your community be able to "fight the fight" again with any success.
You have a right to free speech and you may, within some limitations of slander and decency, say anything you want to your local officials or cable company. Try to remember that, they too, have rights, most especially, the right to ignore what you say.
2.16 Why shouldn't that "strike force" take the my franchise fees and offer to support ANYONE willing to make my life easier, or in this case make public access a reality in my area?
There is no strike force!
More to the point, franchise fees are paid to the city and it is the city that determines how those funds will be used.
2.17 What books or documents can I read that will help me get public access television going in my community?
b. Delaney, Ann, "Politics for Dummies," ISBN: 156884381X, available from Amazon books.
Information to be added as time permits. In the interim, refer to Chapter 7 and Chapter 8 of the Guidebook: Creating a Government Access Channel
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