DePaul Law Review Volume 38 Issue 4 Summer 1989: AIDP Symposium Article 8 Controversial Programming on Cable Television's Public Access Channels: The Limits of Governmental Response Wally Mueller Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Wally Mueller, Controversial Programming on Cable Television's Public Access Channels: The Limits of Governmental Response, 38 DePaul L. Rev. 1051 (1989) Available at: https://via.library.depaul.edu/law-review/vol38/iss4/8 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. CONTROVERSIAL PROGRAMMING ON CABLE TELEVISION'S PUBLIC ACCESS CHANNELS: THE LIMITS OF GOVERNMENTAL RESPONSE INTRODUCTION On the question of the right to photograph there is as yet very little judicial opinion. Clearly, every one who sees fit may make pictures of natural scenery. ... We think that no photograph exposing others to scorn, disgrace, or contempt would be tolerated.' One-hundred years ago, during photography's infancy, this was one com- mentator's opinion as to the permissibiltiy of taking "controversial" photo- graphs. Today, such a position would clearly be contrary to the notions of permissible photography as practiced by photo-journalists, encouraged by society, and protected by the first amendment. However, while photography escaped extensive regulation, many other modes or media of expression have not fared as well. Early societal and legal restrictions on media often have become permanently entrenched and accepted. When society becomes disil- lusioned with or ignorant of the capabilities of the new mode or medium of expression it often reacts by imposing restrictions. Moie often such restric- tions are the product of the politically powerful attempting to maintain or increase their power and control over society. By setting the ground rules for the new outlet of expression, and by appealing to the majority's fun- damental intolerance of the minority, the powerful ensure the continued access of those with whom they agree while freezing out any opponents. Fortunately, as was the case with photography, many such knee-jerk res- trictions are detected early and remedied so as to fuel the free flow of expression. One new medium of expression suffering through these early growing pains is cable television's public access channels.2 Public access channels offer citizens the unprecedented opportunity to express themselves over the powerful medium of television-free from the control of the government or media conglomerates. Public access channels are the electronic soap box of the next-soon to be current-communication age. However, due to disap- pointment with some of the programming appearing on public access, local governments, cable companies, and even individual cable television subscri- bers are attempting to restrict material presented on these channels. These restrictions could have deleterious effects on the future uninhibited use of 1. ScrENTrc AmnucAN, Apr. 1889. 2. For a description of public access channels see infra notes 52-100 and accompanying text. 1051 1052 DEPA UL LA W REVIEW [Vol. 38:1051 the medium. The disappointment stems from the cablecasting of controversial programming or programming produced by unpopular groups.' To date, public access programming produced by white supremacists has caused the 4 most furor. The goal of this Comment is to critique the various governmental responses to controversial programming on public access channels. Local communities have attempted to control controversial programming through the application of two techniques: counter-programming and scheduling. Both methods are intended to diminish the impact of the controversial message and are imple- mented based solely on the content of the program. Therefore, such restric- tions implicate the first amendment and must be scrutinized in accordance with the amendment's precepts. The background section of this Comment will review the history and development of the cable television industry in general and access channels in particular. This Comment will then examine the Federal Communications Commission's ("F.C.C.") regulation of cable television, focusing primarily on the F.C.C.'s regulation of public access channels from the late 1960's until the late 1970's. Next, the background section will analyze the Cable Communications Policy Act of 1984, the current framework under which local communities control cable television and public access channels. Finally, the background section will conclude with a description of some of the controversial programming at issue, the circumstances under which such programming has been submitted, and the various responses of local gov- ernments, cable companies, and local citizens. The analysis section will examine the treatment controversial speech re- ceives under the first amendment. This Comment will then explore the appropriate level of governmental intrusion on public access programming by applying a public forum doctrine analysis and analyzing a state action problem associated with public access channels managed by non-profit cor- porations. Lastly, this Comment will critique the use of counter-programming and scheduling as responses to controversial programming on public access channels. This comment concludes that counter-programming and schedul- ing, as presently practiced, are impermissible because such techniques are contrary to the traditional first-come, first-served public access environment, contravene the purpose of public access as set out by Congress, and violate the first amendment under current public forum doctrine analysis. I. BACKGROUND A. Development of the Cable Industry The first cable television systems in the United States were constructed in the late 1940's. These early cable systems were known as community antenna 3. See infra notes 231-52 and accompanying text. 4. See id. 1989] CABLE PUBLIC ACCESS CHANNELS 1053 television ("CATV") systems, reflecting the fact that they only retransmitted broadcast signals.' The location of the first CATV system is "shrouded in the same definitional haze which has obscured the origins of most 'firsts' in broadcast innovation."' 6 Cities in Oregon and Pennsylvania claim to have been the location of the first CATV system in the United States. A local radio station operator in Astoria, Oregon, is often credited with constructing the first noncommercial CATV system in 1949. 7 By other accounts, a line serviceman for a utility company who, in 1948, constructed a CATV system in Mahonoy City, Pennsylvania, is the rightful "father of cable television.", However, the first CATV system specifically designed to earn a profit, and usually credited with launching CATV was located in Lansford, Pennsyl- vania.9 Jerrold Electronic Corporation, an equipment manufacturer, planned the Lansford CATV system in October 1949, finished construction by early 1950 and, thereafter, began service as a profit-making venture.'0 In these early systems, a CATV subscriber would pay approximately $100 for the instal- lation of the cable and approximately $5 per month for service.II The industry grew rapidly and by 1955, there were 400 CATV systems serving 150,000 2 subscribers.' 5. Berkshire Cablevision of R.I., Inc. v. Burke, 571 F. Supp. 976, 979 n.l (D.R.I. 1983) (cable television refers to systems capable of retransmitting television broadcast signals); Miller & Beals, Regulation Cable Television, 57 WASH. L. Rav. 86 (1981). 6. D. LEDuc, CABLE TELEVISION AND THE F.C.C.: A CRIsIs IN MEDIA CONTROL 67 (1973). 7. H.R. REP. No. 934, 98th Cong., 2d Sess. 20, reprinted in 1984 U.S. CODE CONG. & ADMIn. NEws 4657 [hereinafter H.R. RP. 934 reprinted in USCCANJ; S. REP. No. 67, 98th Cong., 1st Sess. 5 n.1 (1983) [hereinafter S. REP. 671; G. Gn.LEsPE, Puauc AccEss CABLE TELEVISION ni TM UNITED STATES AND CANADA 19-20 (1975) (radio station owner L.E. "Ed" Parsons, at wife's insistence for better television picture from Seattle stations, mounted antenna on roof of local hotel and strung wire to apartment) (citation omitted); D. LEDuc, supra note 6, at 68. 8. S. REP. 67, supra note 7, at 5. Apparently many early CATV entrepreneurs were either appliance store owners or television repairmen attempting to increase business. M. HAmBuRo, ALL ABOUT CABLE: LEGAL AND BusnIEss ASPECTS OF CABLE AND PAY TELEVISION §1.02 (rev. ed. 1982) (John Walson, Sr., an appliance store owner, constructed the CATV system to increase sales of television sets as well as collect subscriber fees). This phenomenon closely tracks the modus operandi of the early radio industry pioneers, whose desire to construct radio stations and create programming was fueled by the anticipated profit from selling more radios. D. LEDuc, supra note 6, at 67. 9. See G. GILLESPIE, supra note 7, at 19. See also S. REP. 67, supra note 7, at 5 n.l; M. HA BURo, supra note 8, § 1.02; R. ORINGEL & S. BuscE, T- E AccEsS MANAGER'S HANDBOOK: A GUIDE FOR MANAGING CommuNiTy TELEVISION 1-2 (1987). 10. See M. HAMatnO, supra note 8, § 1.02; D. LEDuc, supra note 6, at 68. 11. See, e.g., M. HAMuRo, supra note 8, §1.02 (Mahonoy City system charged $100 installation, $2 monthly fee); D. LEDuc, supra note 6, at 67 (typical system charged $100 installation, $5 monthly fee); R. ORINGEL & S. BusKE, supra note 9, at 2 (Lansford system charged $125 installation, S3 monthly fee). Today the average basic monthly fee is $12.48. Telephone interview with Tom Kavanaugh, Regional Marketing Analyst, Showtime Networks, Inc. (Mar. 1, 1989) [hereinafter Kavanaugh interview). 12. H.R. REP. 934, supra note 7, at 20, reprinted in USCCAN, at 4657. 1054 DEPA UL LAW REVIEW [Vol. 38:1051 Early CATV's sole purpose was to retransmit distant broadcast television signals to rural, remote areas. Most early judicial opinions that ventured to define CATV shared this assessment.