City leaders battle broadcasters over regulation of public access

Station users claim officials go too far in eyeing content

From the Summer 2002 issue of The News Media & The Law, page 26.

By Jennifer L. Williston

If a citizen wants to broadcast an important message but does not have the financial resources to buy time on a regular television or cable station, public access channels can be a perfect resource.

But because the channels allow free expression with minimal editing or censorship, local governments often find problems with some of the resulting shows, arguing that they are obscene, indecent, or potentially libelous. Sometimes officials try to restrict or shut down such programming.

In Biddeford, Maine, the city’s council leaders shut down a public access station so they could revise station rules to combat difficulties with live broadcasts. In Tampa, Fla., Hillsborough County Commissioners threatened to cut funding to the public access station unless the station complies with decency provisions in their contract. And in Philadelphia, the only major U.S. city without a public access station, community members have intensified their fight to create a station based on provisions spelled out in a 1983 ordinance but that have never been followed.

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Maine city shutters station to revise public access rules

In Biddeford, the City Council adopted an emergency ordinance to shut down the city’s Community Access Television Center. The moratorium, issued May 13, applies to all privately produced, governmental, and educational programs and is in effect while the city develops new rules to govern the station.

The station blackout comes in response to an advisory opinion written in a lawsuit filed by a public access producer who had been banned from broadcasting on the station.

The council voted in October 2001 to ban Biddeford resident Dorothy Lafortune, producer and host of “The Maine Forum,” from the public access station for violation of her user agreement. Lafortune sued the city for violating her First Amendment rights and was permitted to continue broadcasting while her case was decided.

“The Maine Forum” was broadcast live each week on Biddeford’s public access Channel 2 with tapes of the show aired as part of the regular sequence of programming. Following a show that alleged government conspiracy and corruption, Biddeford Mayor Donna J. Dion pulled tapes of the show from rotation and told Lafortune that she violated part of the user agreement requiring approval from all persons who were mentioned on the air.

In an April 30 advisory opinion, U.S. Magistrate Judge David M. Cohen said Biddeford’s practice of requiring broadcasters to secure permission to use people’s names on the air violated the First Amendment.

Following the station shutdown, Biddeford resident Richard Rhames filed suit on May 17 claiming that his First Amendment rights had been violated because he is unable to broadcast his views over the public access channel.

Rhames requested a temporary restraining order that would force the city to reactivate its public access channel so he could resume his broadcasts.

Comparing a public access television station to a public park, both forums for expression, U.S. District Court Judge Brock Hornby in Portland, Maine, ruled on May 24 that the moratorium is a content-neutral restriction that does not violate the First Amendment. He explained that “government does not have to provide the public park (by analogy, the public access channel) in the first place; but that once it does so, it cannot favor certain speakers at the expense of others.”

Hornby concluded that Biddeford had a legitimate interest in passing a moratorium of reasonable duration while it revises its public access station rules. He said the ordinance creating the moratorium was narrowly tailored and not intended to censor speech.

In analyzing the moratorium, Hornby said: “The First Amendment prevents government from censoring speech by citizens, but allows government to enforce content-neutral rules regulating time, place or manner of speaking — if the rules are narrowly tailored and leave open ample alternative channels for communication.”

The decision to shut down the station “was the result of the recent court recommendation that indicated we needed to clarify our operation of the access station through our ordinance,” Dion said. The city “does not want to censor what people are saying.”

But she said some people have made verbally abusive and inflammatory statements on the air, adding that “there is a way for people to say the same thing, but not use inappropriate words.”

While the result was not what Rhames had requested, David Lourie, a cooperating attorney for the Maine Civil Liberties Union who is representing Rhames, said he is reasonably satisfied with the ruling.

Lourie said Hornby recognizes that the city cannot take a long time rewriting the rules. He noted, too, that the judge said that if the new rules followed the sentiments of some counsel members in ensuring that offensive material does not appear, that would be a clear First Amendment violation.

On June 10, Hornby issued a 60-day stay in Lafortune’s lawsuit against the city, citing his concerns that a ruling he made while the station was shut down could be pointless.

Biddeford’s Cable TV Committee is currently working on revising the guideline, Dion predicts the station will go back on the air sometime between the end of August and beginning of September. (Rhames v. Biddeford; Lafortune v. Biddeford)

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Officials allege breach of contract after efforts to combat vulgarities

In Tampa, Hillsborough County Commissioners alleged that the Tampa Bay Community Network, a nonprofit group that manages Speak Up Tampa Bay, Tampa’s public access channel, has breached its contract by violating operating procedure.

Commissioners threatened to cut funding if contract provisions are not met, such as airing a disclaimer on shows that are inappropriate for children and demonstrating that permission to use a copyrighted song has been granted before it is aired.

Gregg Koss, executive director of the Tampa Bay Community Network, said the commissioner’s actions are a pretext for censorship.

“I’m baffled that no one called to discuss questions they had about our procedures,” Koss said.

Instead, “there was an immediate claim of breach of contract on the heels of concerns about content.”

Commissioners became concerned with some of the channel’s programming, when Charles Perkins, producer of “The White Chocolate Show” appeared as a reformed pimp dressed as a nun and showed a video of a nude woman fondling herself in the shower.

Commissioners thought the show was obscene and hoped to take it off the air. But State Attorney Mark Ober told the commission he would not seek criminal charges because Perkins’ message in White Chocolate was not obscene and fell into the realm of protected political speech.

The station suspended Perkins for 90 days, following a July 10 broadcast where Perkins failed to adequately identify himself as the show’s producer. Koss explained that as part of the programming agreement producers are required to identify themselves at the end of each show they broadcast. Perkins was warned about this after a March 28 broadcast and told that any further infraction would result in a suspension from the station.

Koss said that Perkins’ suspension was completely a technical matter and not related in any way to the program’s content. He added that Perkins has appealed the suspension and will be welcome back on the air at the end of his suspension or if the appeal is approved.

Perkins is currently seeking a seat for county commissioner in District 3 of Tampa, which is currently represented by Tom Scott.

The Tampa Bay Community Network has met with county attorneys to negotiate some of the channel’s policies.

While Koss does not concede that the station breached its contract, he said the station is willing to make adjustments to change its policies.

The agreements centralize some production practices that had previously been the responsibility of each independent producer. For example, copyright releases will be filed at the station instead of with the producer, and the station will require producers to classify programming into categories based on the nature of its content.

On July 24, the commission voted 4-3 to approve the agreements as constituting a cure. Yet the commission’s battle with the station is not over as Commissioner Jim Norman has declared his intention to flag the station’s budget at upcoming budget hearings.

“It is clear that there is a contingency who is gunning for us at all costs and who wants public access gone,” Koss said. “First they attacked our programming content, then they brought up contractual issues, and now finally they are threatening to cut our budget.

“The issue is volatile, and I cannot predict what the commission will decide,” Koss said. “But if they cut our funding, we are prepared to proceed with a lawsuit.”

Hillsborough County Commissioner Ronda Storms, one of the most vocal opponents of the station, said she will continue her campaign until the station’s operators are out of business.

“In my opinion, we’re in round three of a 12-round fight,” Storms said. “You win some rounds. You lose some rounds.”

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Nonprofit files suit to establish public access station in Philadelphia

Fighting a constant battle for a public access station, the Community Access Coalition in Philadelphia filed a lawsuit against the city in March, arguing that citizens’ First and Fourteenth Amendment rights are violated by the city’s refusal to establish a public access station. Although an ordinance that provided for the creation of a nonprofit organization to manage such a station has existed for 19 years, the city has never undertaken efforts to create one.

The City Council passed an ordinance in 1983 with similar provisions written into cable franchise agreements with local cable operating companies. Those same provisions were rewritten into current franchise agreements signed by Comcast and Urban Cable Works in 1999.

The ordinance stipulates that annual franchise fees paid by the cable companies should be set aside to fund the access stations. However, the city collects the fees and adds them to its general access fund. (Ordinance #1963)

Philadelphia Community Access Coalition, a grassroots organization of citizens interested in establishing a public access station, filed suit in federal court after attempts to petition the government appeared fruitless.

In response to the lawsuit, the city filed a motion to dismiss, arguing that the ordinance to set up the station was invalid and that a public access station is not a public forum.

Sam Stretton, the group’s attorney, said he thought the activists had a good shot of winning the case if the judge examines the arguments. If the case is dismissed, Stretton and the group intended to seek further action, possibly filing a lawsuit in state court.