1. ALLIANCE FOR COMMUNITY MEDIA MIDWEST REGIONAL CONFERENCE ST. PAUL, MINNESOTA FEBRUARY 28-29, 2004 PEG ACCESS LEGAL ISSUES Stephen J. Guzzetta Creighton Bradley & Guzzetta, L.L.C. Saint Paul, Minnesota guzzetta@creightonbradley.com (651) 379-0900 February 28, 2004

2. 2 OVERVIEW Controversial Programming Copyright Use of PEG Channels

3. 3 CONTROVERSIAL PROGRAMMING First Amendment Limitations Cannot abridge freedom of speech Applicable to “State Actors” through the Fourteenth Amendment Who are “State Actors?” Local government employees and officers City Councils Joint Powers Commissions Non-profit Access Corporations – in some instances Controlled by a state actor Funded by a state actor Provide public benefit General Rule: State actors cannot regulate speech on the basis of content, unless they use the least restrictive means available to advance a compelling governmental interest Greater latitude with content-neutral regulation (e.g., time, place and manner)

4. 4 CONTROVERSIAL PROGRAMMING Public vs. Nonpublic Fora Nonpublic forum (e.g., government access channel)– can typically regulate content and speaker identity as long as such regulation is reasonable and viewpoint neutral Public forum (e.g., possibly public access channel)– compelling government interest and narrowly tailored remedy General characteristics of a public forum: Open to the general public on a nondiscriminatory basis Traditional location for public discussion

5. 5 CONTROVERSIAL PROGRAMMING Exception to General Rule on Content-based Regulation: Unprotected Speech Unprotected speech may be regulated and suppressed Such speech is of little value to public discourse and self-expression Content-based regulation of unprotected speech must be “viewpoint neutral” Examples of Unprotected Speech: Obscenity Defamation Slander Libel Fighting Words Invasion of Privacy

6. 6 CONTROVERSIAL PROGRAMMING What is obscene speech? Average person, applying contemporary community standards, would find the work, taken as a whole applies to prurient interest; and The work depicts or describes, in a patently offensive way, sexual conduct defined by state or local law; and The work, taken as a whole, lacks serious artistic, literary, political or scientific value. What is indecent speech? Speech that does not conform with accepted standards of morality. Indecent speech IS generally entitled to First Amendment Protection

7. 7 CONTROVERSIAL PROGRAMMING What is defamation? Libel (written) Slander (spoken) Television programming typically considered libel General Elements of Defamation: False statement; Published or communicated to third parties; Tendency to harm the complaining party’s reputation in the community; and The speaker or publisher knew or should have known that the statement was false (negligence) Defamation Per Se: Need not prove damage to reputation Examples: allegations of sexual misconduct; allegations of criminal misbehavior; allegations that a person is afflicted with a loathsome disease

8. 8 CONTROVERSIAL PROGRAMMING Defamation of Public Officials/Public Figures In addition to other elements, must prove defamatory statement made with “actual malice” or was not related to official conduct Actual malice means knowledge that a statement was false or reckless disregard for the truth Must typically prove actual malice with clear and convincing proof Test for Determining Who is a Public Official Whether person performs governmental duties related to the public interest; Whether the person holds a position to influence significantly the resolution of public issues; and Whether the person has, or appears to have, substantial responsibility for or control over conduct of government affairs

9. 9 CONTROVERSIAL PROGRAMMING Who is a Public Figure? An individual who achieves pervasive fame or notoriety; or An individual who voluntarily injects himself/herself into or are drawn into a particular public controversy An individual who becomes a prominent in the affairs of society through no purposeful action of their own Statement of Opinion NOT defamation, and Constitutionally protected Whether statement is opinion depends on: Precision and specificity of statement Verifiability of statement Literary and social context of statement Public context of statement

10. 10 CONTROVERSIAL PROGRAMMING Invasion of Privacy Intrusion upon Seclusion Intentional intrusion, physically or otherwise, upon the solitude or seclusion of another or his private affairs The intrusion must be highly offensive to a reasonable person Appropriation Appropriation of the name or likeness of another for personal use or benefit Publication of Private Facts Giving publicity to a matter concerning the private life of another; and The matter publicized is of a kind that: Would be highly offensive to a reasonable person; and Is not of legitimate concern to the public May also need to show the offensive facts are not already in the public domain

11. 11 STRATEGIES FOR HANDLING CONTROVERSIAL PROGRAMMING Require indemnification by program producers Require certification of compliance with local standards and applicable law Time segregation Adult content advisories Require producers to self-identify controversial content Pre-screen programming, although somewhat risky from a legal standpoint (could be prior restraint) Limit number of times controversial programming is cablecasted, although there is a risk that this is not viewpoint neutral regulation Work with problem producer

12. 12 LIABILITY FOR CONTROVERSIAL PROGRAMMING 47 U.S.C. § 555a: For claims arising from the regulation of cable service, any relief shall be limited to injunctive and declaratory relief Declaratory relief: a binding adjudication of the rights and status of litigants, without award of monetary damages Injunctive relief: a prohibitive, equitable remedy that forbids the performance of an act or the continuing performance of an act Section 555a is applicable to: Affirmative regulation of content on a PEG channel Failure to regulate content on a PEG channel

13. 13 COPYRIGHT Copyright protects “original works of authorship fixed in any tangible medium of expression... From which they can be perceived, reproduced, or otherwise communicated...” Exist in physical form Independently created by the author Result of creative effort (e.g., more than alphabetical listing of names) – originality is key Works of authorship include (by way of example): Literary works and pictorial works Musical works and any accompanying words Dramatic works, including any accompanying music Architecture Motion pictures and other audiovisual works Sound recordings Underlying Ideas or Facts and Not Protected

14. 14 COPYRIGHT Federal Government Works, Material in Public Domain, Facts, and Common Ideas/Concepts (e.g., plots, themes, etc.) Not Protected Copyright interests of PEG programming producers and PEG facility managers Authors of copyrighted works (e.g., video programs) Users of copyrighted materials (e.g., background music) Copyright owners have the exclusive right to: Reproduce the copyrighted work Prepare derivative works Distribute copies of the copyrighted work to the public by sale or other transfer or ownership, or by rental, lease or lending Perform the copyrighted work publicly Display the work publicly

15. 15 COPYRIGHT Exemptions to copyright protection include: Fair Use Certain General Rights of Performance Payment of a Royalty Compulsory License

16. 16 COPYRIGHT Fair Use “Fair Use” of a copyrighted work is not an infringement of copyright Examples of “Fair Use” include use for the purpose of: Criticism (e.g., quoting in a review) Comment (e.g., using excerpt for purpose of analysis) News Reporting (e.g., brief quotes in a news article) Research and Scholarship (e.g., using a short quote in a scholarly article) Transformation of a copyrighted work(e.g., a parody) can be fair use Factors to be considered in determining whether a particular use is a “fair use:” The purpose and character of the use, including whether it is of a commercial nature or for a non-profit educational purpose; The nature of the copyrighted work (e.g., is it published or not); The amount and substantiality of the portion used; and The effect of the use on the potential market for or value of the copyrighted material

17. 17 COPYRIGHT General Rights of Public Performance Like “fair use,” not an infringement of copyright Examples: Face-to-face teaching activities Instructional broadcasting or transmissions for specific classwork of nonprofit educational institutions or government training programs (NOT broadcasts directed to the public at large) Religious services Live performances without commercial advantage to anyone Mere reception of broadcasts in a public place Performance of a nondramatic literary or musical work as part of a social function by a nonprofit veterans or fraternal organization, provided the performance is not open to the general public and the proceeds are donated to charity

18. 18 FAIR USE STRATEGIES Avoid merely copying someone else’s work verbatim – “transform” the work if you can (i.e., make it something new) Avoid personal financial gain from the use, unless there is a clear public benefit Do not impair the market for or value of the copyrighted work (e.g., don’t take money out of the author’s pocket) Use as little copyrighted material as possible or necessary (i.e., quantity often counts against you)

19. 19 FAIR USE STRATEGIES Consider the importance of the copyrighted material you are using to the entire work Giving the author credit will NOT avoid copyright infringement if the use falls outside the “fair use” exemption

20. 20 GENERAL COPYRIGHT STRATEGIES Ensure program producers agree that they have gotten all necessary authorizations as a condition of using access facilities (some risk of prior restraint) Require actual copies of authorizations, consents, licenses, etc. Regularly inform producers of their rights and responsibilities under copyright law Require indemnification from program producers As needed, connect producers with agencies that grant licenses for use of copyrighted works (e.g., ASCAP and BMI for music) Ask your cable operator about any blanket license it has to see if the license would cover PEG channels

21. 21 USE OF PEG CHANNELS Federal Law Cable Act is ambiguous – no specific uses expressly authorized or proscribed Legislative History State Law Public Access – noncommercial use by the public Government Access – use by local governments Educational Access – use by local educational authorities Local Law/Franchise Ordinances May define use of PEG Channels (by speaker and/or content) May define “noncommercial” and whether use of educational and governmental channels must be noncommercial Local Access Rules and Policies Case Law

22. 22 USE OF PEG CHANNELS Legislative History of Cable Act Governmental Access Showing local government at work (e.g., a local “mini-C- SPAN”) Communication with the public CANNOT lease government access channel to third parties for uses unrelated to government access Public Access – modern-day speaker’s soapbox Educational Access Instructional programming in the schools Distance learning (children and adults) Bringing local schools into the home Communicating with the public Disseminating general informational content related to the schools

23. 23 USE OF PEG CHANNELS Case Law Time Warner v. Bloomberg decisions Governmental access – use cannot be so limitless as to include an programming selected by a government Educational access – use cannot be so limitless as to include any program that has conceivable educational value Advertising not banned under Cable Act Underlying purposes of PEG channels that will be considered in determining whether a particular use is lawful: Response to local needs Creation of space for voices that would not otherwise be heard Air programs needed by a community that might not otherwise be viable For government channels – show local government at work

24. 24 USE OF PEG CHANNELS Case Law (Cont’d) Denver Area Educational Telecommunications Consortium v. FCC Use of PEG channels must comport in some sense with “industry practice” Look to how other access organizations program their PEG channels Goldberg v. Cablevision Systems Corp. Content must comport with common practice A particular use may be permissible if it furthers Congress’s goals for PEG channels (e.g., for public access, promoting diversity of ideas) – look at primary purpose Advertisement for the sale of a videotape of a public access program upheld

25. 25 USE OF PEG CHANNELS What is “Noncommercial?” Speaker-based Definition A not-for-profit entity Possible Content-based Definitions No commercials (i.e., paid advertising for products and services) No commercial purpose (i.e., to produce financial gain) Primary purpose is not financial gain Sponsorship by a for-profit entity does not typically make a particular program commercial

26. CONCLUSION Stephen J. Guzzetta Creighton Bradley & Guzzetta, LLC Saint Paul, Minnesota guzzetta@creightonbradley.com