Government Access Channel Policies NATOA Regional Workshop Nashville, Tennessee March 7, 2003 Michael R. Bradley Creighton Bradley & Guzzetta, LLC 444 Cedar Street, Suite 950, Saint Paul, MN P/(651) ext. 2 F/(651)

Government Access Policies _______________________________ March 7, 2003 Slide # 2 Use of Government Access Channel Federal Law –Cable Act – no specific uses expressly authorized or proscribed Legislative History of Cable Act –Help explain the general nature of programming 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 State Law –May Limit Uses

Government Access Policies _______________________________ March 7, 2003 Slide # 3 Use of Government Access Channel 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

Government Access Policies _______________________________ March 7, 2003 Slide # 4 Use of Government Access Channel Case Law –Time Warner v. Bloomberg decisions Inappropriate for City to put Fox News on Government Channel The “G” Channel is not available for any use that the City wishes to make of it. Is not necessarily limited to public hearings, but cannot by so limitless as to include ANY programming selected by a governmental unit Advertising not banned under Cable Act

Government Access Policies _______________________________ March 7, 2003 Slide # 5 Use of Government Access Channel 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. A particular use may be permissible if it furthers Congress’s goals for PEG channels (e.g., for public access, promoting diversity of ideas) Advertisement for the sale of a videotape of a public access program upheld

Government Access Policies _______________________________ March 7, 2003 Slide # 6 Eligible Users City Elected Officials City Boards and Commissions City Special Committees and Task Forces City Department Heads Sponsored by City official or agency staff Outside programming Outside Programmers or Acquired Programs –Some Cities more liberal than others in allowing outside programmers

Government Access Policies _______________________________ March 7, 2003 Slide # 7 Noncommercial Use Look at State Law and Cable Franchise 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 – See Goldberg (Ad for tape sales not “commercial” program) Sponsorship by a for-profit entity does not typically make a particular program commercial

Government Access Policies _______________________________ March 7, 2003 Slide # 8 First Amendment Issues Different than Public Access Nonpublic Forum –Policies should confirm Can typically regulate content and speaker identity as long as such regulation is reasonable and viewpoint neutral

Government Access Policies _______________________________ March 7, 2003 Slide # 9 Content Restrictions Restricted to Local Government Issues –Some more broad to include government issues that affect the citizens of the city Political Use of Channel –candidate endorsement, campaigning, etc Position Advocacy Advertising Lotteries Promotion of Religion Slander, Libel, Defamation Indecent or Obscene Content Copyright Restrictions Fundraising

Government Access Policies _______________________________ March 7, 2003 Slide # 10 Equal Time Policy “Equal Time” FCC rules apply only to broadcast stations and cable systems –47 CFR Access Channels are not subject to the FCC’s equal opportunity rules –In re Zawicki, 60 R.R.2d 1657 (1986)

Government Access Policies _______________________________ March 7, 2003 Slide # 11 Retention of Tapes/Discs Policy Official Record of Meeting? –State/local law Subject to Data Practice Act? –State/local law Check State Law and cable franchise Typically retained for about 3 months Retain for longer period on request

Government Access Policies _______________________________ March 7, 2003 Slide # 12 Duplication Policies Set fee for public and City agencies Require a blank tape or Disc Limits on the amount of dubs Public Viewing –At Studio, library, etc.

Government Access Policies _______________________________ March 7, 2003 Slide # 13 Editing Policy City Meetings –Typically Editing Prohibited –Gavel to Gavel Department Programs –Modification normally allowed Bulletin Board Announcements –Editing to provide for clarity

Government Access Policies _______________________________ March 7, 2003 Slide # 14 Programming Priorities - Scheduling Emergency Information Public Meetings Programs that explain policies and programs of the City Issues of City-wide significance Public Meetings of other Government Agencies Cultural and Historical programming Programs of General Interest Public Service Announcements

Government Access Policies _______________________________ March 7, 2003 Slide # 15 Government Access Liability Limitations 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

Government Access Policies _______________________________ March 7, 2003 Slide # 16 Government Access Liability Limitations Section 555a is applicable to: –Affirmative regulation of content on a PEG channel –Failure to regulate content on a PEG channel

Government Access Channel Policies NATOA Regional Workshop Nashville, Tennessee March 7, 2003 Michael R. Bradley Creighton Bradley & Guzzetta, LLC 444 Cedar Street, Suite 950, Saint Paul, MN P/(651) ext. 2 F/(651)