Commercial Public Access TV Programming and Case Law

The following line appears in a 15 year-old franchise agreement contract:

"Public Access Channel(s) shall be for the display of noncommercial public, educational, and government programming produced or sponsored locally by residents, organizations, and institutions within the City."

However, the adjective "commercial" is not defined. Federal law does refer to similar concepts below:

b) Material which is intended to defraud the viewer or designed to obtain money by false or fraudulent means is prohibited. Violation of this rule is subject to criminal liability under federal law, Title 18, U.S.C. Sec. 1464.

d) Advertisements are prohibited. An advertisement is any message or other programming material which is broadcast, cablecast, or otherwise transmitted in exchange for payment (including equivalent compensation which can be determined only after due process), AND which is intended (1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit; (2) to express the views of any person with respect to any matter of public importance or interest; or (3) to support or oppose any candidate for political office. (Pursuant to Title 47, U.S.C. Sec. 399a, 399b.)

The following excerpt appears on the FCC website at [url removed, login to view] :

"Federal law permitted a cable operator to prohibit the use of a PEG channel for programming that contains obscene material, sexually explicit conduct, indecency, nudity, or material soliciting or promoting unlawful conduct. However, the U.S. Supreme Court determined that this law was unconstitutional."

These are my questions:

1. When was this declared unconstitutional?

2. If a public access program has an element that is commercial in nature, would it fall under "material soliciting or promoting unlawful conduct" which now appears to be protected speech?

3. Can the cable operator refuse to transmit a public access program it believes to be commercial in nature?

4. Can the cable operator hold the franchising authority liable for the commercial programming when its agreement does not define commercial programming?

5. If the cable operator cannot stop this speech, can the franchising authority rely on a prohibition within the franchise agreement if that prohibition has been declared unconstitutional?

6. Are there other means by which a franchising authority can define, regulate, or prohibit commercial content within a public access program?

7. What is the due process required for cases with alleged violations?

8. Is there a distinction between "commercial" programming and programming that is "advertising"?

9. What are the criteria for determining what constitutes "commercial" programming?

Federal law or case law should be cited in the answers.

In your response/bid, it must be absolutely clear that you read the project, looked at the file(s), and have something intelligent, clear, or informative to say about what you saw, or you will not be considered. Please do not reply with long boiler plate messages or credentials, or we will suspect an automated reply and it will count against you.

Correction: The federal laws cited appear to have been repealed or amended or the wrong citation is used. Searching for the cited text may reveal the correct citation. However, do the federal laws referenced apply to PEG cable channels or only broadcast channels?

Evner: Juridisk Forskning, Rapport Skrivning, Research

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