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

One thought on “Channel 8 Pass Thru Fee Shenanigans

  1. Freedom of speech is one of the many freedoms our governement is chipping away at. Mostly I have watched this happening on a national level. Perhaps you remember that as part of the Patriot Act, librarians and book sellers are now bound by law to turn over records of what you are reading, despite the First Amendment. And the Supreme Court decision in favor of Citizens United dilutes much of your freedom and power we have as American citizens. How frightening that our local government… people I know and talk to…. are robbing us of our public forum. Thank you, Dante, for taking the time to make all of this clear and to fight this battle.

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