From the Summer 2000 issue of The News Media & The Law, page .
Comparing public access channels with a speaker’s soap box or the printed leaflet, the 1984 Cable Act passed by Congress requires cable companies to provide the public with a cable channel free of charge so that they may exercise their free speech rights.
The majority of public access stations are run by organizations such as cable companies, community colleges and non-profit organizations that generally adopt a hands-off policy when it comes to interfering with programming content. Recently, however, there is a growing trend for cities to involve themselves with the administration of public access channels after receiving complaints about their content. Controversies have surfaced in Buffalo, N.Y., Palestine, Texas, Seattle and Illinois.
Buffalo takes control of public access channel
Despite protests on city hall steps to keep public access Channel 18 free from government control, and vehement letters on the editorial page of The Buffalo News discounting the city’s “dopey ideas,” a judge denied a preliminary injunction sought by Buffalo Neighborhood Network to allow the nonprofit network to continue operating channel 18.
State trial judge Patrick NeMoyer allowed city government telecommunications officials to remove all the city-provided equipment from BNN in order to take control of the station’s operations.
The dispute arose in early June when city officials announced that the Office of Telecommunications would take over the public access channel, saying it was terminating the city’s contract with BNN over offensive programming and other unspecified problems.
Buffalo Neighborhood Network filed suit, claiming the city’s actions violate the station’s operating agreement.
NeMoyer told the network that it could regain city funding and control of the station if it proved the city violated the written deal, but that since the city’s intentions are to operate the channel itself and not to contract out to another operator, the need for an “extraordinary remedy” like an injunction barring city action isn’t currently legally justified.
A city official told the News that it wants to” make sure people understand that we want to run [the station] the right way. And [that] we have no intention of controlling what’s on the channel.” The city’s communications office will be guided by an advisory committee while running the station. (Buffalo Neighborhood Network v. City of Buffalo)
Texas judge allows show back on the air until trial
U.S. District Judge T. John Ward allowed a controversial public access show to be aired twice a week, pending the outcome of host Joe Ed Bunton’s civil lawsuit against the city of Palestine at the end of August.
“We’re very pleased with the judge’s decision,” said Washington attorney Peter Hopkins, who provided pro bono legal counsel. Ward told both parties that he believes there’s a “substantial likelihood that the plaintiff will prevail on the merits of the case.”
Questions & Answers was removed from the air for four weeks after the city issued a new ordinance changing the public access channel to a strictly educational and governmental channel. Other programs focusing on issues such as religion are no longer on the air because of the city’s new cable contract.
Bunton sued the city and Texas Cable Partners, L.P., alleging the new ordinance violates his constitutional rights. The show had prompted objections from city council members because of its public airings of criticism of city government. The show is currently investigating possible mismanagement of city travel expense accounts.
In a telephone call with the city manager, Bunton was informed that the city council had agreed that they wanted Questions & Answers off Palestine’s cable system. In another recorded telephone conversation with the mayor, Bunton asked whether the city council was taking all church programming off public access just to remove him, to which the Mayor responded, “if that’s what it takes, that’s what it will have to be if I have my way.”
San Antonio attorney Lowell Denton told the Palestine Herald-Press that the city’s stance was that it had the legal right to take “back the permission for the public to use a public access channel as part of its cable agreement.” When that agreement ran out in May, Denton said the city had “no obligation to make it anew.”
The Associated Press reported that Ward told Denton during opening arguments that “the court has a serious problem with the concept” of a governmental body controlling “what goes on the air.”
“We’re not regulating who can use it,” Denton responded. “The government is retaining the use of it itself.” (Bunton v. City of Palestine)
Des Plaines Cable commission considers decency standards
Michael Casaccio says his public access cable show, Static Experience, is meant to offend, and offend it has. Bob Suriano, a member of the Des Plaines, Ill., cable commission, urged the cable commission to investigate whether the city can legally create standards that would keep obscene or indecent public access shows off the local public access channel.
Static Experience combines dialogue with strings of expletives spewed by Casaccio’s character the Stoned Ranger.
“He was saying things like, 14-year-old girls could call him ’cause he would know what to do with them,” Suriano told the Chicago Tribune. He also objected to the amount of curse words.
“I put a lot of energy into the show. Why doesn’t he just change the channel?” Casaccio told the Chicago Tribune.
The cable commission has asked City Attorney Dave Wiltse to look over Casaccio’s show and determine if the city can legally create content standards. Wiltse believes it can, that “the public has a right to make sure that what’s carried on that channel is not obscene.”
Other members of the cable commission are leery of taking on the role of censor.
Cable commissioner Joe Botte would like to block Casaccio’s show. “We ought to be able to have some kind of control over more blatant forms of obscenity,” he told the Chicago Tribune. “But to be able to do that successfully is going to be more difficult because of the limits of the law.”
Casaccio’s show is restricted to late hours, although AT&T, which owns the public access channel, maintains a hands-off policy regarding editorial control of public access shows.
“We’re all for free speech, and we’re all for everyone having access to the cable channels,” Suriano told the Chicago Tribune. “The concern here is what steps can we take if there is a conflict of tastes.”
Controversial cable show back on access channel
Two years after being removed from Seattle’s public access channel, T.J. Williamson is back on the air exposing himself and flashing graphic sex scenes.
AT&T Cable, formerly TCI Cable, and the American Civil Liberties Union reached an agreement that allows Williamson to return with full editorial control while AT&T organizes a review board to determine whether shows are obscene or legitimate expression of free speech.
Williamson’s return featured a sex act with his girlfriend and clips from pornographic films.
TCI Cable banned Williamson’s show in 1998 after receiving many complaints from viewers, and being told by the city to do something about Williamson and another public access producer, Mike Aviaz. Both Williamson’s and Aviaz’s shows featured sexually explicit material.
Williamson was allowed back on the air after he agreed not to show sex acts, both actual or simulated. TCI filed suit in federal court in Seattle after Aviaz refused the same offer. District Court Judge John Coughenour ruled in December 1998 that TCI could suspend the show, but questioned whether Aviaz’s due process rights were violated. Aviaz, represented by the ACLU, appealed the ruling.
The two parties reached a settlement in March, agreeing that AT&T would create a three-member board to oversee content. Aviaz has not yet returned to the air.
AT&T is hoping to distance itself from the issue by working with the city to create a non-profit agency to run public access cable.
The Seattle Post-Intelligencer reported that Williamson told viewers that he would further push the edges of free expression. (TCI Cablevision v. Aviaz)