Regulation and Franchising
Advocates for public access TV won a victory in 1972 when the FCC issued its Third Report and Order, which required all cable systems in the top 100 U.S. television markets to provide three access channels, one each for educational, local government and public use. If there was insufficient demand for three in a particular market, the cable companies could offer fewer channels, but at least one. Any group or individual wishing to use the channels was guaranteed at least five minutes free. The cable companies were also required to provide the facilities and equipment with which people could produce shows (Gillespie, 91; Hollowell vol. 3, p.103; FCC…).
In 1976 the rule was amended to include cable systems in communities with 3500 or more subscribers. The cable companies had no discretion. Midwest Video Corporation then sued the FCC on the grounds that it had overstepped its authority in requiring the access channels. The Supreme Court, in 1979, ruled in favor of Midwest (FCC…). This was a blow to supporters of community television, since the wording of many cable franchise agreements had relied on the FCC's order to create access channels in their communities (Hollowell vol.2, p. 107).
By the time of the ruling, however, some local governments had written franchise agreements requiring cable companies to provide an access channel irrespective of FCC rules. Baldwin defines a franchise as a contract between the city and a cable company that defines the conditions under which cable service will be provided to the community (Balwin, 204).
Hollowell describes examples of franchise agreements negotiated between 1978 and 1980 in New York State. In 1979, White Plains, a town of only 20,000 people at the time, required the local cable franchise to provide four access channels. In Rochester, the franchisee agreed to provide $100,000 for access production equipment and up to $83,100 a year for staff for five years. In Syracuse, the franchise required an access center and a three-person staff (Hollowell, Vol. 2, pp. 110-111).
In Eau Claire, Wisconsin, an advisory committee recommended to the city council, in September 1977, that a public access center be established as part of the new cable TV franchise agreement. The access center budget was proposed to the city council in October and $10,000 was approved for 1978. Meanwhile, Wisconsin CATV secured an agreement from the L. E. Phillips Memorial Public Library to provide studio space in its basement. Wisconsin CATV purchased and installed production equipment for access use. In January 1978, the Public Access Board convened for the first time, and in March the new Eau Claire Public Access Center began producing local shows ranging "from City Council meetings to individual poetry programs" (PACT).
While the Supreme Court's 1979 Midwest Video decision discouraged community TV supporters, the 1984 Cable Franchise Policy and Communications Act restored much of what had been lost. Senator Barry Goldwater wrote the act, which allowed local governments to require "public, educational or government" (PEG) channels (Sec. 611 - Baldwin, 384-385). It also barred cable operators from exercising editorial control over content of programs carried on PEG channels and absolved them from liability for that content (Sec. 638, 639 - Baldwin, 407, 180; Roberts), which addressed the free speech mission of an institution often shrouded in controversy.
A year earlier, the Public Access Center (PAC) in Eau Claire, Wisconsin, was criticized for televising a tape produced by a man convicted of murdering a city police officer. Christian Bangert produced his tape while free on bail, claiming the local media's version of events would prevent him from getting a fair trial. On October 6, 1982, Bangert had been arguing with his girlfriend when Officer Robert Bolton responded to the domestic abuse call. In a struggle with Bangert, Bolton was fatally shot.
Bangert pleaded no-contest and the video was shown in court at his sentencing hearing and several times on PAC's cable channel. Eau Claire Police Chief James McFarlane considered the airing of the show an insult and said it "was in poor taste." Robert Shaw, a member of the City Council (which had contributed $40,000 to PAC), said that while the City Council should not decide what programs air on PAC, the facility's executive director should (Lautenshlager, 1A, 2A).
Around the country, explicit sex and promotion of Nazi groups have also appeared on PEG channels. In an effort to protect children from indecent programming, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. This law gave the FCC authority to create rules requiring cable operators to prohibit certain shows. When the FCC drew up such rules, the Alliance for Community Media and others brought suit (Roberts).
In 1996, the U.S. Supreme Court held the law unconstitutional, in part because it required cable operators to act on behalf of the federal government to control expression based on content. According to Justices Kennedy and Ginsburg, "Where the government thus excludes speech from a public forum on the basis of its content, the Constitution requires that the regulation be given the most exacting scrutiny" (Denver Area…).