Cable television, like the computer, has great potential for innovative video growth and change. Trying now to develop policies for the future is futile, because so much depends on dynamic technological and market factors that cannot be predicted. On a more modest scale, however, cable has its own public service scheme, which--like broadcasting's--is flawed in implementation. So the issue once more is whether, and if so, what steps should be taken to implement that scheme more effectively during the next decade. After a description of the scheme, its constitutionality will be reviewed in light of the recent Supreme Court ruling in Turner v FCC; and possible reform will be discussed.
The Basic Cable Regulatory Approach
The 1984 Cable Act established the present regulatory approach to cable, subject to certain refinements in 1992 legislation. Because cable has such great capacity, with increased capacity coming on-stream through fiber and compression techniques, Congress bypassed behavioral regulation of content and focused instead on a content-neutral, access-based structure (see CBS v DNC, cited earlier). Section 624 of the 1984 Cable Act provides that no government body shall "impose requirements regarding the provision or content of cable service, except as expressly provided in this title"(subsection (f)(1)), and subsection (a) specifies that the franchising authority "may not establish requirements for video programming or other information services."67
Because the act was designed to promote the public interest by explicitly diversifying the sources of information over cable (the Associated Press principle), it requires systems of 36 channels or more to set aside 10 to 15 percent of capacity for commercial leased channel access (section 612), and it permits the franchising authority to designate channels for public, educational, and governmental access (PEG) use, with facilities support (sections 611, 624(b)(1)). The cable operator is to exercise no editorial control over the leased or PEG channels (sections 611(e); 612(c)(2)).68
The House report on the 1984 act included the following rationale for the PEG provisions:
One of the greatest challenges over the years in establishing communications policy has been assuring access to the electronic media by people other than the licensees or owners of those media. The development of cable television, with its abundance of channels, can provide the public and program providers the meaningful access that, up until now, has been difficult to obtain. A requirement of reasonable third-party access to cable systems will mean a wide diversity of information sources for the public--the fundamental goal of the First Amendment--without the need to regulate the content of programming provided over cable. Almost all recent franchise agreements provide for access by local governments, schools, and non-profit and community groups over so-called "PEG" (public, educational, and governmental) channels. Public access channels are often the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas.
PEG channels also contribute to an informed citizenry by bringing local schools into the home, and by showing the public local government at work. H.R. 4103 continues the policy of allowing cities to specify in cable franchises that channel capacity and other facilities be devoted to such use.69
The PEG channels thus further two of the purposes of the Cable Act: they ensure that cable systems are responsive to the needs and interests of the local community, and they ensure that such systems provide the widest possible diversity of information sources and services to the public.70
Constitutionality of the Access Approach The district court has upheld the constitutionality of the access provisions, although the case is being appealed (see footnote 74. In the interim, the Supreme Court has shed considerable light on cable's standing under the First Amendment in Turner v FCC, the must-carry case, and the access provisions appear to be constitutional under Turner.
Although the Court rejected the contention that cable has the same reduced standing under the First Amendment as a broadcaster, it also rejected cable's contention that it is entitled to the strict scrutiny protection accorded the print medium in Tornillo.71 The heart of the Court's ruling is that the must-carry provisions are content-neutral and "are justified by special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power poses." The Court therefore declined to use "the most exacting level of First Amendment scrutiny," and agreed with the district court that the "appropriate standard by which to evaluate the constitutionality of must-carry is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech." This is the O'Brien standard, which holds that a content-neutral regulation will be sustained if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction is no greater than is essential to the furtherance of that interest." 72
The largest issue as to the constitutionality of the access provisions would appear to be whether they are content-neutral and thus come under the O'Brien test. The leased access requirement is clearly content-neutral. The PEG channels present a closer case in this regard. It can be argued that the government's purpose is different from and inconsistent with the suppression of free expression because cable is free to present any material it wishes; that the public access channel and the government channel are really wide-open channels for local expression. Thus, the government channel is a local C-SPAN operation that, in addition to covering government proceedings, affords opportunities to interest groups or concerned citizens to discuss issues. However, in a limited channel environment, the government is here preferring local cable programming over national programming (e.g., C-SPAN). The most difficult case is the educational channel, which, in addition to educational programming, typically presents school board meetings and public discussions of education issues.73
These access provisions clearly meet the other O'Brien tests: they serve an important government purpose, and the restrictions do not exceed what is essential to further the government's interest. Leased access, tailored to the larger systems, is limited to 10 to 15 percent of capacity. PEG usually involves only a few channels, and if either the PEG or leased access channels are not used, they are available to the cable operation for its own purposes. Cable capacity is increasing rapidly, so the burden of these requirements should be reduced in the future. Finally, it is significant that the dissent in the district court's decision in Turner v FCC relied heavily upon a characterization of the leased channel provision as narrowly tailored to carry out the government's purpose.74
In light of cable's rapidly increasing channel capacity and telco's large-scale entry into video programming delivery, at some point, channel capacity on both cable and telco will become a readily available commodity. The problem will not be one of access, but of financial support for the PEG channels (see discussion in the following section). The government can obtain funds from a franchise fee based on the value of cable's or telco's use of the public rights-of-way and can devote a portion of these funds to lease (and support) PEG channels. In this way, all constitutional issues are put to rest.75
The Reform Needed Professor Patricia Aufderheide of The American University has described the effectiveness of the PEG channels in bringing local issues to the fore and sparking strong voter reaction; fostering summer reading programs through the educational channel; and greatly increasing public contact with local officials. Public access channels can serve as safety valves for individual expression and contribute markedly to the community goals that are essential to the functions of democracy. The problems stemming from such open access represent the price of a true marketplace of ideas. Furthermore, Aufderheide points out that when the Ku Klux Klan began to use these channels, their programs spurred civil libertarians and minorities to employ the access service for their own purposes--practices that continue today (see footnote 73).
Two major flaws impair the PEG channels. The first and most obvious is that the 1984 act does not require such channels. Consequently, PEG channels are found in only a relatively small percentage of cable operations: 16.5 percent of systems have public access, 12.9 percent have educational access, and 10.7 percent have government access.76 In light of the great contribution that these channels could make to the democratic process, Congress should specify a minimum allocation of three channels for PEG purposes with additional channels if the franchising authority establishes that there is a need.
Second, if the locality requires the PEG channel, PEG operations require reasonable financial support if they are to carry out their important missions. The 1984 act did not mandate such support, moving instead in the opposite direction.
In 1972, the FCC found that franchise fees were legitimate if used to fund local government cable regulation or projects like the PEG channel; however, such fees should not tax cable subscribers unreasonably or thwart the goal of robust nationwide cable television. During the bidding war for the franchises, fees as high as 36 percent had been offered to bribe local governments. The FCC therefore adopted a rule limiting fees to 3 percent, permitting an additional 2 percent if a showing were made as to need for some local cable-related purpose, such as support for PEG operations.77
That was how the matter stood when Congress originated the legislation leading to the 1984 act. The cities generally opposed the deregulatory thrust of the act, but they were offered what cable industry representatives have called the $800 million bribe: the act maintains the 5 percent ceiling on franchise fees, but stipulates that the use of funds derived from such fees may not be regulated (section 622(i)). Because the cities were no longer required to use the funds for cable-related regulatory purposes, including implementing the PEG channels, the funds could simply vanish into city coffers to pay for everything from pensions to potholes.
Some cities continue to fund the PEG channels adequately, but generally, as Aufderheide notes, the PEG channel operations have been on a starvation diet.78 Before the bill was enacted, Congress was warned of this danger in a letter from Chairman Timothy Wirth to the House Energy and Commerce Committee, dated February 15, 1974, in which Wirth proposed that 1 to 2 percent of the fee should be used for PEG funding:
This proposal will assure that cable viewers are provided the true diversity of program offerings that cable systems are capable of delivering. Dark, unprogrammed access channels provide no diversity at all. . . . What has been overlooked in the drive to increase the number of channels devoted to alternative programming is that delivery systems and channel capacity alone by no means insure that alternative programming itself w ill be developed. It is not realistic to expect that quality, non-commercial programming for distribution over public and educational access channels will be developed without a meaningful commitment of resources to do just that.
Congress should remedy this flaw by requiring that two percent of the franchise fee be dedicated to supporting the PEG channels. The rest could be used to cover the cost of cable regulation (probably less than one percent) or any other local purpose.79 Surely this is reasonable; after all, the five percent fee is a tax directed at the cable subscriber and thus should be used, to some significant extent, for cable public service.80
In connection with PEG channels, Congress should also prod the local public television stations to fill any void that may occur or to assist local groups as much as possible with developing and operating the channels. Quality Time? (see footnote 59) noted the "modest and declining" number of local programs on local stations (on page 19), and later quoted directly from the report of the First Carnegie Commission (on pages 20-21):
"Public Television programming can deepen a sense of community in local life. It should show us our community as it really is. It should be a forum for debate and controversy. It should bring into the home meetings . . . where major public decisions are hammered out, occasions where people of the community express their hopes, their protests, their enthusiasms, and their will. It should provide a voice for groups in the community that may otherwise be unheard." The Task force agrees with this statement. Moreover, the Task Force believes that one role in particular should be of paramount importance to all public stations: They should be a vital force in involving and engaging the public in local, statewide, and national civic affairs. In this regard, it is noteworthy that very few communities have yet made good use of the . . . PEG channels. . . . The cable industry is rightly proud of its sponsorship of the national C-SPAN channels, but there are still very few local C-SPAN-type operations in this country, despite the obvious need for coverage of town meetings, city councils, school boards, open meetings with officials and elected representatives, and other civic activities. The educational channels present a different, but equally worthwhile challenge. Public television stations (through use of their studios, equipment, and personnel) could play an important role in activating these channels for community groups, educational institutions, and cable initiatives, including continuing education. A percentage of the cable franchise fee . . . should be mandated to support these essential civic, educational, and local public services.
Congress should require the CPB, with the assistance of the Public Broadcasting System, to define the potential contributions of local public television stations in this regard and to file annual progress reports for the next five years. In some communities, no intervention by the local public station may be needed. Others may afford ample opportunity for the station to serve as a catalyst by working with local groups and making its considerable station resources available. The stations' over-the-air contribution might increase, because some of the programming produced for the PEG channels could be edited and replayed over the stations' facilities. Because the situation varies with each community, there should be no mandated entry for the local stations, but rather only a reminder of their civic obligation and potential opportunity, with periodic reports, to bring "sunshine" to the area.