Friday, February 12, 2010

Baldwin CAP Act / + Interesting nugget from the Midwest Video Case (1979)

To: members of the Alliance for Community Media
   media activists, and interested parties.
From: Bill Huston, Binghamton NY
Subject: Baldwin CAP Act HR 3745 and Midwest Video

I am grateful for all the people responsible for putting forth the
Baldwin CAP Act, H.R. 3745. It's a great start and I support it 100%.

I encourage all ACM members and community media supporters to

a) call your Congressman and ask them to co-sponsor, and

b) support the efforts of Bunnie Reidel and her new PAC,
American Community Television.,
which is specifically focused on getting this legislation passed.
They need funds, and I say, let's help them do it
as a 501(c)(4) what the ACM cannot easily do as a 501(c)(3).

I applaud Bunnie and her colleagues for putting this together.

However, I am begging the leadership of the ACM and ACT to hear
the cry of people like me living in places like Binghamton which either
  • a) have no PEG channels at all, or
  • b) EG but no P, or
  • c) channel capacity, but no production facilities. 

For us, the CAP Act does not go far enough.

I happened to be reviewing the Midwest Video case,
and found a very interesting nugget, but first, let's
review the history:

  • 1934: Radio Act establishes that the electromagnetic spectrum is the commons,
    the property of All the People, and regulation of access to this spectrum
    is in the "public interest and necessity". Creates the FCC.

  • 1949: FCC established the Fairness Doctrine, which says broadcast licensees must
    present controversial issues of public importance and to do so in a manner that was
    (in the Commission's view) honest, equitable and balanced. Source.

  • 1969: CATV "Local Origination" facilities were first ordered by the FCC
    and that cable operators must provide "a significant amount of local programming".

  • 1969: In Red Lion Broadcasting v. FCC, the Supreme Court established that
    while broadcasters were "persons" will full First Amendment rights,
    due to scarce spectrum, the FCC could regulate content with the Fairness Doctrine
    as being in the public interest.

  • 1971: LO and PEG facilities and channel capacity were mandated in NY in 1971,
    which included  1 P and 1 EG channel (2 total PEG) in systems of 21 channels or more.

  • In 1976, the FCC ordered that in systems of at least 20 channels,
    there must be set-asides for Public, Education, and Government channels.

  • In 1979 Midwest Video case overturned this.
So, "Local Origination" was mandated between 1969-1979,
and PEG was mandated between 1976-1979.

Now the Midwest video case did overturn it,
right in the preamble we can find the exact thing we need to do.

We have to tell congress to regulate Cable TV as Common Carriers.
Also while we are at it, let's do the same with broadcast licensees!
The electromagnetic spectrum belongs to the PEOPLE!
Yet, our "local" corporate-owned broadcast outlets won't let us on the air?
Won't let us use or have access to THAT WHICH WE OWN!?

Please read this summary,
and I hope you are moved to take action!

FCC v. MIDWEST VIDEO CORP., 440 U.S. 689 (1979)

[In 1976, t]he Federal Communications Commission promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by public, educational, local governmental, and leased-access users, and to furnish equipment and facilities for access purposes. Under the rules, cable operators are [prohibited from exercising editorial control over access programming]. During the rulemaking proceedings, the FCC rejected a challenge to the rules on jurisdictional grounds, maintaining that the rules would promote "the achievement of long-standing communications regulatory objectives by increasing outlets for local self-expression and augmenting the public's choice of programs." On petition for review, the Court of Appeals set aside the FCC's rules as beyond the agency's jurisdiction. The court was of the view that the rules amounted to an attempt to impose common-carrier obligations on cable operators, and thus ran counter to the command of 3 (h) of the Communications Act of 1934 that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier." Held: The FCC's rules are not "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. South-western Cable Co., 392 U.S. 157, 178 , and hence are not within the FCC's statutory authority. Pp. 696-709.

(a) The FCC's access rules plainly impose common-carrier obligations on cable operators. United States v. Midwest Video Corp., 406 U.S. 649 , distinguished. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis; operators are prohibited from determining or influencing the content of access [440 U.S. 689, 690]   programming; and charges for access and use of equipment are delimited. Pp. 699-702.

(b) Consistently with the policy of the Act to preserve editorial control of programming in the licensee, 3 (h) [forbids] the FCC [from imposing] access requirements amounting to common-carrier obligations on broadcast systems. The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. Although 3 (h) does not explicitly limit the regulation of cable systems, Congress' limitation on the FCC's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Pp. 702-707.

(c) In light of the hesitancy with which Congress has approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common-carrier basis, this Court is constrained to hold that the FCC exceeded the limits of its authority in promulgating its access rules. The FCC may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters.

(Here is the big summary... Drum roll please! -- BH)

Authority to compel cable operators
to provide common carriage of
public-originated transmissions
must come specifically from Congress

Since we have the CAP Act in committee,
how about we add some language to clear this up once and for all?
Is it now clear what we need to do?

Thanks for listening / reading.
Let's get busy!

Kindest Regards,

Will Huston         
Binghamton NY             Phone: 607-321-7846

Binghamton-area discussion; spirituality topics:
Watch for Open-To-Everyone TV!        

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