eNATOAAugust 11, 2014

Brian T. Grogan, Esq., Moss & Barnett

Election ProgrammingOn Local PEG Channels

What Channel?

• Public Access Channel: Local programming created by the wide variety of individuals, groups and organizations within a community. The producer typically has full editorial control. Public access channels, equipment and facilities are usually available for use on a first come, first served basis and the LFA and cable operator do not exert any editorial control except over unprotected speech (e.g., obscenity).

• Educational Access Channel: Channels administered and programming created by staff, faculty and students of local educational institutions. Programs usually center around the activities of schools and colleges in the community, and may include fully-televised courses of instruction.

• Government Access Channel: Channels administered and programming produced by local government staff and volunteers. Gavel-to-gavel coverage of public meetings is the mainstay of this category, but informative programs on such topics as fire safety, health and recreational opportunities provided by local government are also offered.

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Cable Act and PEG

1. PEG Capacity - 47 U.S.C. § 531 - LFA may establish requirements in its local franchise with respect to the designation of channel capacity for PEG use.

2. PEG Rules - 47 U.S.C. 531(b)(d) - LFA may require rules and procedures for the use of the PEG channels.

3. PEG Funding - 47 U.S.C. § 542(g) - LFA may require a cable operator to provide necessary capital for PEG access facilities.

4. Operator’s Editorial Control - 47 U.S.C. § 531(C) - The Cable Act prohibits cable operators from exercising any editorial control over PEG channels.

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Cable Act and PEG

5. No Liability for Operator - 47 U.S.C. § 558 - Cable operators are relieved from criminal or civil liability for libel, slander, incitement, invasions of privacy and false or misleading advertising for any programming carried on the PEG channels.

- excludes the transmission of “obscene material”

- 47 U.S.C. § 559

6. LFA’s Editorial Control – LFAs are free to exercise editorial control, subject to applicable First Amendment considerations, but are afforded no federal statutory relief from liability for the programming carried on PEG channels.

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Broadcast Rules Do Not Apply to PEG

1. Equal opportunity- All candidates = equal access

2. Personal attack / editorial rules- Notice and opportunity to respond

3. Reasonable access- Candidates must be afforded access

4. Fairness doctrine- Discussion of conflicting views

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Best Approach

1. Carry election programming on “Public” access channel

2. Treat election programming the same as all other public access programing

3. Continue to use government access channel for public meetings

4. Make certain your staff does not provide production support

5. Do not make “content based decision”

First Amendment

• Do individuals have the right to run information on PEG channels?– Depends – P, E, or G channel

• LFA can exercise editorial control on – Government and Educational channels

• It is safe to consider a “public” access channel as a– Designated Public Forum for speech. – Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37 (1983)

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First Amendment

• Public channel– Assuming a “designated public forum”– Government has limited authority to regulate

based on the “content” of the speech.

• LFA only has authority to adopt regulations which affect, but do not suppress, speech.

• Such regulations are known as “time, place and manner” regulations– Valid only if they comply with the tests

outlined by the United States Supreme Court.8

Supreme Court tests• United States v. O’Brien, 391 U.S. 367 (1968),

– Government regulation affecting first amendment rights is justified,

• If it is within the constitutional power of the government; • if it furthers an important or substantial governmental

interest; • if the government interest is unrelated to the suppression

of free expressions; and • if the incidental restriction on alleged first amendment

freedoms is no greater than is essential to the furtherance of that interest.

– See also second test is found in:– Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981)

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Election Coverage

Questions to ask:

1.On what Channel will programming appear?2.What do your rules and procedures require?3.Will your staff provide assistance?4.Have you treated this programming differently from other public access programming?

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Best Approach

1. Carry election programming on “Public” access channel

2. Treat election programming the same as all other public access programing

3. Continue to use government access channel for public meetings

4. Make certain your staff does not provide production support

5. Do not make “content based decision”

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Thank You

Brian T. Grogan, Esq.Moss & Barnett, A Professional Association

150 South Fifth Street, Suite 1200Minneapolis, MN 55402

(612) 877-5340 phone / (612) 877-5999 facsimilee-mail: Brian.Grogan@lawmoss.com