Brian T. Grogan PowerPoint presentation to the Wisconsin Community Media 2015 Spring Conference (April 30-May 1, 2015) on Cable Television and the First Amendment.

1. The "P-E-G's"
of Operating Policies
_______________________
Wisconsin Community Media
2015 Spring Conference
Hilton Milwaukee City Center
Milwaukee, WI
April 30 - May 1, 2015
Presented by: Brian T. Grogan, Esq
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2. 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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3. 3
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. Not in Wisconsin
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.

4. 4
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.

5. 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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6. 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.
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7. 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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8. Example - 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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9. 9
Broadcast Rules Do Not Apply to PEG
1. Equal opportunity
• All candidates = equal access
1. Personal attack / editorial rules
• Notice and opportunity to respond
1. Reasonable access
• Candidates must be afforded access
1. Fairness doctrine
• Discussion of conflicting views

10. 10
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”

11. 11
Brian T. Grogan, Esq.
Moss & Barnett, A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340 phone / (612) 877-5031 facsimile
E-mail: Brian.Grogan@lawmoss.com
Web site: www.lawmoss.com
Questions