Cable access provider can charge 'outsiders' for airing shows

FIFTH CIRCUIT–A Houston cable corporation can charge non-local programmers in order to promote local programming on a channel set aside for public, educational or governmental (PEG) use but only if the fees charged actually offset costs or improve local programming, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled in mid-June.

If the fees do not serve these legitimate purposes, they represent an unconstitutional burden on speech, the court said. The court sent the case back to federal District Court in Houston, ordering it to determine how fees were actually used.

Access Houston, a PEG channel operated by Warner Cable Communications under its cable franchise with Houston, encourages programs that reflect “the activities, culture, concerns and interests of the citizens of Houston” by waiving any charges for programs that are produced locally. It charges $100 an hour to organizations for programs produced outside of Houston.

Nationalist Television, which describes itself as “pro-majority” and is described in court records as “white supremacist,” sued Access Houston in federal District Court in 1992, saying fees levied against it for the cable-casting of “Airlink” violated its First Amendment right to promote its views. Access Houston canceled “Airlink,” a program produced by Nationalist Television in Mississippi, after the organization refused to pay fees it had accrued in three months of cable-casting.

The appeals panel told the lower court to determine if fees are actually used to offset costs of cable-casting for organizations outside the community or used to actually increase local programming. If the fees did not represent actual costs incurred for cable-casting the Mississippi production, or were not used directly to improve and increase local programming, then the court would find that they represented an unconstitutional restraint on speech, the panel ruled.

Nationalist Television claimed that the fee rule is not a “content neutral” regulation incidental to free speech but is a ruse to give Access Houston administrators discretion to arbitrarily encourage content-based discrimination against programs.

(Horton v. Access Houston; plaintiff’s attorney: Richard Barrett, Learned, Miss.)