office of Congressman Maurice Hinchey
From: Bill Huston
I am writing to ask for Congressman Hinchey's
support on Rep. Baldwin's CAP Act,
for the preservation of Public Access TV.
I believe the bill is not complete,
as it does not provide provisions to help
places like Binghamton, which presently
has no facility.
(... Although we are working on it! ..There is much discussion
on the Alliance for Community Media listserv,
that adding additional provisions in this bill
would gain strong response from the cable industry,
propaganda poison pills for each provision
and threaten it's passage.
There are many places around the country
where the franchise fees are collected by the
Local Franchise Authorities and used
for the general fund and no Public Access facility
exists. Binghamton is one of those places.
(* In NY, the LFAs are each a combination of the
Public Service Commission jointly with the local municipality)
One problem is apparently a States Rights issue.
The 10th Amendment says the federal government
cannot use any power (e.g, compelling states or muni's to
collect a certain tax and spend it on some designated purpose, like
PEG funding) not specifically granted to it.
These remaining powers are reserved
by right to the states, or the people.
I say a strong argument could be made
that federally-mandated public access
only acknowledges a right which already exists:
the right of the people to have access to their own property,
and use free speech on the commons.
1: The FCC created federally mandated public access
between 1969-1971. In 1979 ("Midwest Video") the SCOTUS
said the FCC did not have statutory authority to do this.
Q: Can Congress give the FCC this authority? I say: YES!
2: The corporations have enclosed the electromagnetic commons,
they have taken property from the people
(access of the electromagnetic spectrum existing over public rights of way)
without due process.
Since corporations are chartered by the state,
then this is 14th Amendment claim:
By chartering these corporations, and allowing them to go unchecked,
the states have acted to deny people certain privileges (rights):
specifically: access to the commons, rights of free speech on the commons
by creating legal fictions which do the dirty work.
Yes this sounds like a claim for the courts,
but we can fix this in the legislature.
3: Sometimes it appears to be the municipality which has done the dirty work,
since the muni's are the LFA.
Being a state actor, this raises First Amendment concerns.
Also, Congress created the opt-out clause of the 1984 Cable Act,
which apparently grants the muni's the "right" to allow the cable
co's to lock people out.
Remember: "Congress shall make no law abridging freedom of speech".
4: But really it's the monopoly cable company which
owns the cable head-end. If they have production facilities
and deny people access, they are the actor, not the muni.
Corporations are created by state action (charter).
5: I think another approach is to explore Anti-Trust actions
against these monopolies (locally, laterally, and vertical monopolies
since these same corp's own both production and distribution)
(Anti-trust against the insurance monopolies seems to be gaining
ground in the health-care issue)
I'm still researching this, Dan.
I'm just giving you a heads-up
about where I am...
Again: I think CAP is an excellent start!
I encourage Congressman Hinchey to become a co-sponsor of
Cong. Baldwin's Community Access Preservation (CAP) Act of 2009 (H.R. 3745)
... as we all explore the possibility of getting provisions added
which would not only guarantee a funding stream
from the franchise fees to preserve existing facilites,
but also provide provisions to help places like Binghamton,
which does not have any existing facility at this time.
Thanks Dan! I look forward to seeing you next week!
Bill Huston WilliamAHuston@gmail.com
Binghamton NY Phone: 607-321-7846
SocialNet: http://facebook.com/billhuston http://myspace.com/MrMouthyMan
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