Channel 8 Pass Thru Fee Shenanigans

The following letter, e-mail, and Channel 8 web page excerpt are in reference to tomorrow’s Board of Supervisors second reading of PUC 5870(n) cable PEG fee ordinance for Lake County.

Lake County Record-Bee
letters to the editor
December 21, 2014

RE: PEG Channel TV8 pass through fee

TV8 is a PEG station in name only. The letters in the PEG acronym represent three separate interest groups with different agendas.

The “P” stands for public access and this function operates on federally defined public forum standards. However, the PEG Board is composed of government representatives and their appointees. It is not surprising that they treat public access as if it were just another local government “home rule” service. It is not. In fact, the PEG Board denies that public forum principles, stemming from Hague v. CIO (1939), have anything to do with their actions.

The ignoring of established free speech guarantees is not a new development in Lake County. When I was the first person to submit a video that was not “government approved”, two members of the PEG Committee organized an unruly mob of PIC members on September 24, 2004 to intimidate me.

Now the PEG Board wants a pass through for a PEG station that, in fact, no longer exists. Sure the “G” part exists but the public access “P” part does not. The new State Franchise Law only allows a forced pass through for a full PEG station as defined by federal law, not as defined by Ed Robey.

Other local jurisdictions have not been sued for a PEG pass through fee because they are not fraudulently calling a government channel a PEG channel. I suggest that a PEG Board that is 100% composed of politicians and their appointees will have a hard time convincing disinterested third parties that they are upholding the public access rights of citizens who are critical of those same politicians.

[e-mail to two County Supervisors and Shawn Swatosh – Mediacom manager]
The key issue regarding TV8’s eligibility for a PUC 5870(n) pass through is its status as a PEG Channel. Only full PEG channels qualify for a pass through as “PEG” is the only type of channel mentioned in 5870. Many former local franchisers in the State only have a government channel for their meetings and designated programming. Those former franchisers do not qualify for a pass through.

The distinction of a PEG channel is that it submits itself to forum analysis as defined by the Supreme Court, notably as described in Perry Education Association v. Perry Local Educators Association (1983). A 1996 Supreme Court case was the last unsuccessful attempt to have PEG channels declared non public forums.

In public forums, only illegal activity can be outright prohibited. Non content based rationing of a limited public resource is allowed. In the special case of PEG programming, a safe harbor for indecent programming is allowed between 10pm and 6am (FCC v. Pacifica Foundation 1978). No other content restrictions for the public access part of a PEG channel is legal.

The LCPTV website boldly announces a new content restriction approved by the PEG Board in August 2014. This goes beyond any content restriction I’ve found for a PEG channel in the Country. The closest I’ve found is attempts to ban content from “political candidates.” I have not found any PEG channels with a policy banning “producers” with a point of view concerning candidates and ballot issues. In essence, the PEG Board has converted TV8 into a stand alone government channel. Therefore, it is ineligible for a pass through.

The fact that the PEG Board has abandoned its responsibility to Mediacom to fulfill its PEG obligations under the State Franchise Law does not relieve Mediacom of its responsibility under PUC 5870(a) to provide PEG capacity for the local entity with franchise PEG provisions as of Jan. 1, 2007. This means the city limits of Clearlake. Mediacom has no PEG obligations to Lake County as a whole.
[I also sent an online attachment of James Horwood’s article on political speech and PEG]

[from the LCPTV home page]
On August 13, 2014 Lake County PEG TV approved the following amendment to our operations manual concerning election material submissions.

3.5 3.5 No election related programming which favors one candidate or ballot measure shall be broadcast. Candidate forums which are public and give equal opportunity to all candidates may be broadcast. Ballot measure forums which are public and give equal opportunity to all parties may be broadcast

Clearlake – The Developmentally Disabled City

Everyone has gripes about how their city functions or was developed. Most problems are manageable and residents learn from them in hindsight. On the other hand, it is possible for a few arrogant, narrow minded people to cause almost unimaginable systemic damage in the formative period of a city. The same people violently resist all attempts by newcomers to make obvious changes, decade after decade. This is what happened to Clearlake.

The biggest deal killer, if there ever was one, was the decision by a small group of realtors and developers to reach out from the old Clearlake Highlands resort strip as far as they could into the howling wilderness to create a fictitious city of 10.6 square miles. Simple people deluded by vague promises of services and skyrocketing land values voted for the incorporation. Never mind that it’s considered poor planning to assume municipal service responsibility for any area that can’t or won’t pay for its own infrastructure. Best practices were irrelevant for founders with their own agenda.

Most of “The City” was composed of hundreds of paper lots with paper access. Forty-four percent of this charming war zone is still only accessible by dirt roads that pollute the Lake with silt. A recent City Manager even tried to give the sprawling paper development called “The Avenues” back to the County. The County laughed in his face.

Lake County wasn’t the poster child for California’s State Map Act for nothing. The constant refrain around here is “When will someone pave the roads?” Post-Map Act, the developers pave them. But Clearlake is pre-Map Act so the only way a dirt road resident’s feet are going to touch asphalt is for neighbors to form multiple road assessment districts and pay for it.

After incorporation the City did not wait for the other shoe to drop before shooting themselves in the foot. The City Fathers, or Deadbeat Dads, frightened the locals in voting for Measure P which mandated that 63% of the City budget must go for police in addition to a half-cent City sales tax. Robert VanNort, an interim City Manager who didn’t plan to stick around, reported that nothing will improve in Clearlake until this restrictive measure is reformed. He was ignored by the Goobertocracy.

While Clearlake can’t spend enough on police, sewers are a low priority. The future thinking brain trust put in a bargain basement version of what the County recommended. This was a faith based infrastructure project where overloaded pipes were believed to drain uphill by divine intervention. Prayers were answered after heavy rains by manhole cover lifting miracles where waves of toilet paper streamed out like dollar store bridal veils.

Clearly, what Clearlake needs is free enterprise. You know, where businesses don’t wait around for incompetent, wasteful government to find a solution. It is entrepreneurial know how and the will to put your money where your mouth is that will save the day. For a City that was never a town, that means the old resort strip of businesses would have to vote in a Business Improvement District, made possible by a 1994 law, to assess themselves.

This would give business property owners control of several blocks to create a commercial oasis and vacation paradise. They would make the decisions and pay the bills, knowing that their superior knowledge of how the market works to satisfy consumer demands will enable this self- supporting district to draw tourists from hundreds of miles. Then and only then will their substantial investment, free of government subsidies and interference, pay off.

Then I woke up – to a city where the business community never forked over a dime of their own money for a long range project. Why should they? This is a City that acts as their agent to be first in line for State Bond money and Federal stimulus packages. That City launches another sales tax attempt every election on the poorest residents in the State while never considering an infrastructure assessment.

Since local businesses don’t want to pay their own bills they certainly won’t contribute their share to the few basic City functions. So the City spends all their time trolling for short term start up grants to fund desired services such as wood chipping or a youth center program. The grants give the City “administration” money for the grant and an opportunity to hire a crony or their unemployable relative for the grant’s duration. When the grant ends, the service that people enjoyed as a step forward is not continued with local funds. That’s the standard operating procedure in Clearlake.

Lake County PEG Board Excludes Politics from Free Speech

There are few controls allowed on what citizens can put on their public access channels. No editorial control on content is legal. The term “political” is a content category not on the short list for exclusion. Nevertheless, the Lake County PEG Board passed the following content restriction over my strenuous objections.

3.5 No election related programming which favors one candidate or ballot measure shall be broadcast. Candidate forums which are public and give equal opportunity to all candidates may be broadcast. Ballot measure forums which are public and give equal opportunity to all parties may be broadcast.

Apparently, this government dominated board feels I do not have the right to use my public access channel to editorialize on ballot issues or promote candidates with new ideas. Its gets even worse. Ed Robey, Lake County’s representative, has rammed through a ban on all political programs “until the Board adopts a policy on political programs” even though TV8 has been on the air for 14 years.

At the last PEG Board meeting I was able to attend, ED Robey acting as Chair, bragged that a recent small claims complaint against the Station forced him to learn all about public access. Robey had acted boldly over the years without seeking any information about what was legal. I had been complaining that the Board had been acting as illegal censors since its inception. So I asked Ed, “So how much of your research dealt with Designated Public Forum law (The legal basis for a PEG Station) His one word answer: “None.”

If the current and past Lake County PEG reps had any interest in the law they would have kicked over gems like “Conrad v. Southeastern Promotions (1975)”, dealing with prior restraint, or “Grayned v. Rockford (1972)”, describing the test for “time, manner, and place” limitations, or the big Kahuna of public forum doctrine “Perry Education Association v. Perry Educators Association (1983), that finally cleared up the exact definition of each type of public forum with their rights and powers.

There is an amazing irony in the certainty of Lake County, Clearlake, and Lakeport representatives about how much power they think they wield over the citizens mouthpiece. The Sue Buske Group was hired to negotiate new cable franchises around 1998. Her team included an attorney to advise them on all matters legal, concerning franchises and public access. This attorney’s name is James Horwood. Any authorities preferring truth over plausible denial should check out his article, “Political Speech and PEG Access: A Legal Analysis”, Community Media Review, Winter 2002-2003.

It would not take an afternoon in a law library to learn that courts have consistently applied the “strict scrutiny” test on any public forum restrictions, demanding that they serve “a compelling State interest.” In other other words, the legislature must pass a law first before the local goobertocracy invents a new way to cut up our 1st Amendment for fish bait.

I have an opinion, based on hours of internet searches after the 2009 conspiracy against TV8, that the Lake County PEG organization has the most hostile attitude toward free speech in the Country. I’m sure many people who agree that public access has been wronged in Lake, still think this judgment is over the top. But consider these two facts: No franchiser is legally required to have a PEG Station. Cities and counties that oppose putting citizens voices on a par with theirs, simply will not ask for a PEG channel. Problem solved. Over two-thirds of the franchisers don’t have PEG channels. The others feel, on balance, that public access is a civic asset.

The only example I’ve found of a PEG station whose operations are regularly and psychotically attacked by the entity that created it is TV8 in Lake County. When I attempted to be the first outsider to use TV8 in 2004 government officials were shocked and angrily responded. The only theory I’ve come up with for this behavior is that Lake County and the city of Clearlake thought they could squeeze all the PEG equipment goodies they could from the cable franchisee without sharing them with a public that they despised. As far as I know, this puts Lake County in a small, mean, and arrogant category all by itself.

If its not obvious, once again I’m asking the Board of Supervisors to demand Ed Robey’s resignation and to educate themselves as to controlling public forum laws.

TV8 – One Channel Ghetto

Most PEG stations are communities where public, education, and government entities enjoy equal access to the public without interference with each other.  One-channel public access stations usually exist for a brief start up period while most go on the air for the first time with three channels.  When different interests are forced to share the limited broadcast time of one channel the government interest always dominates, resulting in their routine meetings getting first choice of air time and the public getting the leftovers.  Censorship of the cramped public ghetto is never far behind.

It doesn’t have to be this way.  When California ceased renewing new local franchises in favor of a State franchise system I assumed the option to demand extra channel space from cable companies by local PEG stations ended.  I was wrong.  Beth, the sole surviving volunteer at TV8, told me she checked State franchise law P.U.C. 5870 and found the new channel provision was still in place.  Our PEG Board is dominated by government representatives.  I wonder why they didn’t know about this valuable free opportunity for local media.

Before the State franchise law took effect, we were told (accurately) that a station had to fill each channel they had with a minimum of 8 hours of local programming per day.  Everyone assumed that “local programming” meant 8 hours of “locally produced”  programming.  Since I knew our neighboring 3-channel PEG stations were not powerhouses of local production I decided to conduct a survey of how they met the 8 hour per day per channel.  The most bewildering was Willits that operates on no money except for City Council videoing and airing fees.  They were a one channel station like Clearlake until about five years ago.

Willits PEG operates on Channels 3, 64, 65.  I interviewed their main programmer, Andy, about their station content as well as his take on what I learned from other PEG station content.

Channel 65 is the scrolling community bulletin board.  It is just as easy to fill one hour as 24 hours per day this way.  One channel worth of 8-hour requirement met.

Channel 64 is the government channel.  Since Willits is a small town they only have their Council meetings on video.  The public would rebel if one channel was showing the same meeting over and over, 24 hours a day, 7 days per week. They import as many nearby government and government partner meetings as they can get.  This type of  programming is an aquired taste but it knocks out another channel for legal purposes.

Channel 3 is the true public access channel.  In addition to video produced by local citizens, they have imported copywrite free programs from universities, PEG Media, and  Clearly, local programming means “put on by a local person” and not as the PEG Board interpreted, “produced by a local person.”  Most of their local programming is imported.

Other PEG stations are sometimes one channel short of a programming requirement due to not having the time to sort through all the free imports.  They will fill this gap with an internet site created for this purpose.  Examples are The Classic Arts Showcase and the NASA channels.  When something more compelling comes along I’m sure they will make the switch.

TV 8 in Lake County is in a much better position to start a 3-channel line up than many PEG stations.  We have an arrangement with Yuba College to air their Distance Learning Program classes.  We could air all of them if it were not for the Board of Supervisors hogging up so much free time on our solitary channel.  Unlike the County deadbeats, Yuba pays us but they’re getting tired of settling for half a loaf of time.

I believe the long time hamstringing of channels by the PEG Board is in the context of ongoing content censorship and acquiesence to illegal station shut-downs by City Managers   (The station is in Clearlake’s old City Hall vending room).  They have rebuffed ever effort by the public for their policies to become compliant with designated public forum law.  So the channel upgrade could not have been merely an oversight by a dedicated but overworked PEG Board.

My suspicion is that their insistance on a one-channel PEG station is yet another strategy to strangle TV8 without showing any blood on their hands during its death throes.

The current Board chair is ED Robey.  He was originally the County’s rep on the Board.  After he quit his Supervisor’s gig he became a “Public Representative” on the Board, just in time for the December 9th, 2009 attack on the station.  When no one else from the Board of Supervisors would consent to sit on this powder keg, Robey switched hats again to fill the County slot, even though he was no longer a Supervisor.

I have a better title for Mr. Robey.  How about “ex PEG Board Member.”  Officially, I am demanding that the BOS ask for Ed Robey’s resignation so TV8 can finally move forward toward independence and functionality.  It would be a good idea if the free loading County butted out as well.  There are non profits waiting in the wings to run TV8 right.

Jesus Crashes Council Meetings

Fundamentalist Christians and the civil rights crowd have never mixed well in Clearlake. There is a history of blending right wing politics and religion here. The ruling elite consider this strange brew superior to any concoction of civil rights decisions rolled out by the U.S. Supreme Court. This is how the Clearlake brain trust rammed through its prayer “invocation” resolution on Sept. 25th.

How ironic that this resolution was excreted one day after the tenth anniversary of Clearlake’s experiment in violent censorship on its PEG Committee. “Ironic” because a local Fundamentalist minister was on this City Committee “representing the public” but chose instead to join the goober shock troop attack on my legally defined 1st Amendment Rights. Not one participant has ever offered an apology for this outrage.

I understand the Calvary Church was behind this six page, legal-case-studded document. The upshot of this high priced verbage was that if the City does not deny any prayer leader equal opportunity to waste public meeting time then prayer in City Council meetings is not explicitly illegal. Of course, we could have a segment on auto maintenance tips too, open to all the public, but that is also not government business and a waste of the public’s time. I notice City staff charges often for THEIR time.

Since I have not seen any openness to other religious ideas from the jumpin’ Jesus fanatics, I’m assuming they are betting that a Wiccan, Druid, or Satanist signing up on the First Church of City Hall calender will be a rare event. Religious freedom includes the right not to participate. Since the Calvary Church demands that I be part of their cult’s captive audience, my religious rights are being violated.

It seems that just a couple months ago the council paid a lawyer to say letting citizens use TV8 (a designated public forum) for candidate and issue programs was wasting government resources. Never mind that a designated public forum is not a government resource. In fact, their lawyer was careful to not cite any case that had anything to do with this over riding legal status. In other words, the City paid an attorney to deliver an irrelevant legal opinion. I was livid.

This is just another example of how hostile the right wing is toward competition when it comes to ideas. Anything that could be said in their anointed prayer segment could be said in Public Input. But they would have to share the podium as equals. Maybe the closet proselytizers don’t like to rub elbows and stand in line with our unwashed secular concerns. Maybe they think the time subsidy to push their faith based infomercials to the head of the line is sanctioned by their God.

If the Council insists on featuring words from imaginary friends at meetings at least they should auction the spot off to the highest bidder. This is the way the Internet and web host providers work. You can get the free version (the equivalent of “public input”) or pay the going rate for the bells and whistles. To demand prime public time for Sunday morning highlights is aggressive panhandling at its ugliest.

Anyone who opposes this backdoor hijacking of Clearlake’s Council meetings should encourage a boycott by their religious leaders of the “Congregations List” maintained by the City. In government functions, Christians should not demand special treatment. They should stand in line as humble members of the public. If they want a roomful of people’s time for themselves they should pay for it. Time is money. I believe the Christians signed on to “Thou shall not steal” a long time ago.

Still not convinced that we don’t need more filler for our underpowered Council meetings? Then why not bump up the regular public features a notch further with a few more acts. We could have ongoing Citizens Police Review Reports or “Sustainability Project Experiments” updates. I only ask that we keep moving forward. Brain dead prayer was fine for the 1st Century but this is the 21st Century.

Like most small-minded bergs ruled by right wing ideologues, Fundamentalists get put at the head of the public banquet table while those expecting simple recognition of their basic American Bill of Rights, as defined by the Supreme Court, get kicked to the curb with the morning garbage.

Clearlake’s Zombie Candidates

I was planning to do a story where I picked out the City Council candidates who had something to say or had some experience standing up to the local goobertocracy. It didn’t work out that way. When the candidate list was final and the statements were filed what we got were the less-than-magnificent seven. There is no one worthy for the job. Certainly no one who deserves the City Council medical benefits that are more lavish than the much criticized Congressional perks.

Of course I have minimum requirements that exceed the legal micro standards posted for the two seats. I believe a contender should be well informed on the issues and have put in the time to be a tireless advocate for at least a couple – preferably on the right side. They should offer clearly researched alternatives and have promoted these alternatives in articles, speeches, and a well linked web site. A serious leader needs to read, write, and show up – everywhere, over and over….and on the internet. Sorry, but it is the 21st Century.

Battles have been fought here, mostly out of the gaze of our small town media. They are still being fought and will likely get nastier in the near future. Those worthy of a vote need to be prepared. When our civil liberties are under attack by a city that abuses its authority for political purposes a true leader will raise their voice. The lesser seven have been mostly silent.

We should have no patience for dilettantes who want to play at pretending to be City Councilpeople. These people would only be in the way and just delay moving Clearlake into a much postponed future. Who are these people?

Two of the candidates didn’t even submit a candidate’s statement. A third, Bruno Sabatier, has a statement but no e-mail contact. He’s the one with the oily patter who never sees any evil.

The incumbent, Joey Luiz, originally wanted to be liked by everyone until he found out that annoyed the people that counted. Now he just schmoozes up the good old boys.

Quincy Jackson appears to be running for the political equivalent of Miss America, espousing lofty sentiments while forgetting to include any boring details.

Our former second in command at the Sheriff Department, Russ Perdock, has made no effort to establish a different attitude about civil liberties from previous former officers running for Clearlake City Council. (see “Goober Rampage in Lake County”)

And finally, someone needs to explain to Michael Walton that the way pre California Map Act residential roads get paved is for residents in a neighborhood to form an assessment district for the purpose. Too bad that’s his only issue.

I guess I’ll have to provide the serious analysis of local issues all by myself. I’ll follow each issue blog with a video. If a candidate wants to make it a discussion they can contact me right after the blog. But I’m warning you, don’t show up unprepared. Its a discussion not an interview.