Well Prepared for the Trump Era

When I moved to Lake County in 2002 little did I know that I was going to undergo a rigorous conditioning to living under a fascist regime. While the 2016 Election left millions of people dazed and bewildered, I looked at the horror unfolding and could only see that the Nation had caught up with Lake County reality. There are several elements to this reality. If I thought deep down most of the Trump vote was anything more than fear and ignorant rage I would not bother writing this.

I happen to like details, check facts, and I follow thru. This made me immediately suspect to the self serving paranoids that ruled the backwater of Lake County. The first thing I learned is that “the public” does not include me. A full description for “the public” in this former frontier of Napa County is “the old landed families”, the real estate industry, right wing fundamentalists, retired police, corrupt civil servants, opportunists pitching Lake County’s low development requirements to out of County interests, and small town, small minded, mean spirited Republican business men who would never survive in a dynamic market environment.

People who find themselves stuck here, but are not members of the club, are only valued if they have brought money with them that can be siphoned off by the tight knit cabal of reactionaries to keep the black heart of the past beating on. The poorer sorts who retreated here from more expensive areas are alternately vilified as the reason progress has bypassed Lake County and exploited as State and Federal grant bait. This grant money is either used to hire more do nothing cronies and unemployable relatives or used for programs that attack people in a class war that the money was supposed to help.

Those who meet in the usual gatherings for “the right kind of people” to hatch schemes for excluding or crushing “the wrong kind of people” are found even in decent localities. Only in Lake County it is all out in the open, for all to see, with neither shame or denial – just like Donald Trump. There are no cover stories, rationalizations, or excuses. The law is not important except when it benefits the right kind of people or some fancy lawyer gets involved to muck things up. Coalitions of diverse interests and future thinking are strategies for losers.

Remember, Lake County was the scene of the Dinius trial that caused a National sensation, resulting in the ouster of both the District Attorney and the Sheriff. Fast boats, corruption, and death on the water. Its only a matter of time before Clear Lake gets their big Hollywood movie. The Chamber won’t like it.

Myself, I’ve experienced numerous instances of freedom of speech and search warrant violations. But so have many other residents. Even in the 21st Century reefer madness still justifies the most absurd and egregious assaults on our civil liberties in the land of Clear Lake. In the rare instance where someone can get a lawyer, and of course win the case, the attitude is “So what. The taxpayers will pay for it.”  No actual presence of devil weed is seen as necessary. They are on a mission from God who over rides the Supreme Court.

My first experience as the subject of civic minded mob action was when I decided to produce a video parody of local politics for the public access station. I was not considered part of “the public.” The City Manager of Clearlake was outraged. When it leaked out what I was planning the former Chamber head and a right wing minister organized a howling mob of their buddies, retired policemen running for local office, businessmen, even one of the founders of Clearlake to storm the  PEG meeting to intimidate me. The Chamber guy kept saying he wanted to punch me out. I challenged him to a chess game. He declined.

After years of attacks on the station everyone was finally driven off, leaving TV8 nothing more than a government channel with some internet filler. But all three governments still use its public forum status to extort money from cable users as a fee for public access. No shame. No shame whatsoever. And why should there be? After all, they are the right kind of people taking from the wrong kind of people, like me and you. When people like Trump aren’t born rich they are called bullies or thugs. To me, Trump is just one of these Lake County goons in a better suit with bigger guns.

As someone who has made a habit of showing up to places I’m not supposed to be at and reading documents I’m not supposed to read, I understood the Trump mindset right from the beginning. I see millions wringing their hands in disbelief that the short sighted, unapologetic arrogance I experience on a local level is now on display in the Presidency for the World to see. I had hoped that after another generation of goobers had died off Lake County would finally join the civilized world. Instead I find that the Nation has decided to become Lake County. It won’t be pretty but I’ve seen it all before.

Lake County’s Sister County

Many cites have “sister cities.” So I suppose counties can have sister counties. Political entity siblings are usually not located near each other. Its as if their drunken political bedfellow parents had a nasty separation and never wanted to see each other again. Each took one of the local mutant twins and made tracks.

So rather than speculate on who’s Lake County’s daddy, I searched for the perfect ugly sister for mutual admiration. That pit stop is Rowan County, Kentucky, population 23,655. Rowan’s newest claim to fame is that its the home of Kim Davis, the County Clerk who believed that she was an agent of God, charged with overturning that Obergefell v. Hodges heresy in accordance with some Divine plan.

Now she also took an oath of office to uphold the Constitution. No one has figured out a better last word on the Constitution than the Supreme Court. The God’s word angle doesn’t always work as evidenced by centuries of religious wars by every side, all tuned into God’s word. Maybe they’re listening to different channels. Maybe the one true God isn’t broadcasting but is in the business of making radios. Davis didn’t have to take her oath of office and its only in effect from the time she plops down at her desk to the moment her car’s seat belt clicks. She is completely free to not issue marriage licenses to gays in her prayer meetings.

Why is Rowan County the right choice to partner with Lake? Lake County has also made national news for taking absurdly ridiculous positions that fly in face of legal issues that have already been decided.

Remember the Dinius case? A sail boat bumping along at 3 to 5 knots at night was run over by a speed boat plowing through the Lake at 35 to 50 miles per hour driven by the assistant sheriff. One of the sail boat’s passengers was killed. The District Attorney decided that the person at the rudder of the sail boat, who wasn’t the captain of the boat, was criminally responsible. The case drug on for months while the public and the sailing community were outraged. According to boating law the wrong person was being charged, resulting in a not guilty verdict for Dinius. In the glare of bad publicity, the DA and sheriff weren’t reelected but the speed boat assassin won election to Clearlake City Council by a landslide.

Lake County’s development in the 20th Century was fueled by selling thousands of  “paper subdivision” lots in rugged terrain with no paved roads or services. Buyers were told the services would just come someday. Someday never came and crashing land values attracted thousands of desperate people longing to own something, no matter how mean. A clique of small minded goobers got the order of events reversed and blamed the poor residents for falling property values and erosion. Their buddies in real estate were the victims not the cause of Clear Lake’s problems. This denial did not stop Lake County from becoming a poster child for California’s State Map Act which limited paper lot subdivisions without minimum improvements.

And don’t forget my pet peeve about Lake County. Lake County has the most censored public access channel in the Country. Ever since TV8 was taken over by local government and the volunteers expelled, all political programming has been put on a very short leash. The government dominated PEG Board has never sought legal advice and insisted they had the right to create new categories of speech control over looked by the Supreme Court. The attacks on volunteers who resisted have been particularly vicious.

But what about my charge that TV8 is the MOST censored public access channel? Surely I’m exaggerating even if the censorship policies were true. What about the Deep South or the Rocky Mountain states? Censorship must be worse there. Maybe it is, but not at public access channels. Why is that? Because courts have ruled that localities are not required to have public access channels. However, if they ask for them in their cable franchise contracts they have to follow free speech and public forum law. The places that would be inclined to illegally censor our free speech rights simply do not ask for public access channels, which is not a violation of our rights.

According to a survey by the Alliance For Community Media, only 18% of cable systems have public access channels. Public access censorship can only take place in this 18% of cable systems. The other 82% are off the hook even if many of them would have violated our rights. Lake County is in the 18% of cable TV who said they would follow the law but  did not. I have not found another station in that 18% that has systematically trashed our liberties over so many years.

Why would Lake County ask for an outlet for the people’s voice if they wanted the people to just shut up? Maybe they thought free speech was a locally defined thing or something only the better sort of people were entitled to. Maybe they thought they could squeeze more free equipment from the cable company if they asked for a PEG channel, discouraging anyone outside their insider club from using it. Who knows. No one who was around at that time is talking. Rowan County doesn’t even have a PEG channel anywhere within its Jesus blessed borders.

Its this complete contempt for the legal process, substituting their views of how things ought to be, that has put Rowan and Lake Counties in the same State of Denial. Think of what they could learn from each other about applying faith based vetoes to every advance since the Dark Ages. The two counties could exchange local newspapers to read about people across the Continent who were just like them. Or maybe they could ban each other’s newspapers. It would be more fun and less work than reading.

Polishing Up Censorship

On August 12th County Counsel Anita Grant made a report to TV8’s PEG Board on their free speech policies. She briefly outlined the legal rights of PEG station users that our citizens have demanded since this government dominated board was formed 8 years ago. The PEG Board members responded to the Counsel’s report as if this information was all news to them.
 
The County Counsel emphasized that programming decisions must be “content neutral” except for several categories narrowly defined by the Supreme Court. Her source was an issue of Community Media Review. It sounded like the one I had passed around several years back. However, the County’s PEG representative, Ed Robey, has indicated in past PEG meetings his intention to bypass this restriction by using the “time place manner” legal concept to schedule offending political programs late at night when few people will see them.
 
The Counsel appeared to be giving the green light to this strategy when she assured the PEG Board that they could use the “time place manner” provision in scheduling. She did not indicate that there were legal criteria to prevent this concept from being used as censorship by another name.
 
The current crystallization of elements that must exist for time place manner to be employed is listed and explained in “”Ward v. Rock Against Racism” 1989. In this binding decision, employing time place manner must not be content specific. But also the time restriction must be narrowly tailored and serve a “significant government interest.” Once employed, the restriction must leave ample alternative means to convey the message.
 
The Counsel’s remarks did not show awareness of this requirement. When the PEG Board programmer asked, “I am allowed to accept 10 videos on 1 candidate?” Grant responded, “That’s an administrative function that’s a time place manner restriction.” She did not give an example of an administrative action that would not be a content restriction in this case.

Counsel added, “You don’t want to set up a circumstance where 1 candidate CoOps the station.” This statement was curious. How can TV8 “set up a circumstance” when the station is open to all residents on an equal basis? If by CoOp the station she meant only supporters of 1 candidate chose to use the station then she is ignoring the fact that different campaigns will choose to use different strategies. You can be sure that a campaign that draws significant contributions to run mass mailings and media ads will not be encouraging their supporters to produce campaign videos for TV8. That’s for poor people.
 
I cannot think of a single way that an administrative action designed to curtail residents from submitting candidate videos that would not fail one or more Supreme Court tests under Ward v. Rock. Historically, these tests are derived from time place manner concepts developed in “Grayned v. City of Rockford” 1972, citing examples from numerous other cases for context. These contexts almost exclusively deal with noise, blocking traffic, and denying other people the use of parks.

These are clear government interests. Providing cover for government subterfuges would be an abuse of time place and manner. One cited example is two parades cannot use the same street at the same time. This does not mean that government has the right to schedule all non Chamber of Commerce parades at 3 a.m. in the morning.

The message was that the PEG Board needed to display the right motives when impeding residents’ political activity. Setting aside “X blocks of time” was not to ghettoize the people’s voice but rather to “make sure everyone has access.” This ignores the fact that TV8 has so much dead time that they haven’t even bothered asking for the two extra channels they are entitled to. Although the Counsel gave mundane examples of normal time place manner such as “production standards” and “allocating time among competing users” she seemed to be implying that anything that the PEG Board wanted to add to the list was legitimate. It is not.

The irony of Grant quoting from the Community Media Review article was that it was written by the attorney for the Sue Buske Group. This was the firm that advised the County and Clearlake in the late 1990’s on franchise and PEG issues. Probably these consultants recommended sending out a “Request for Proposals” (RFP) to interested non profits that would get government out of the free speech business. This is how functioning PEG stations operate. Ask Ukiah. Ask Willits. Ask Fort Bragg. Ask Humboldt County. Ask Weaverville (Weaverville!!!!!).

A local government attorney’s job is to reduce the city or county’s legal exposure as much as possible. Transferring public access functions to non profits clearly does this. But trying to convince politicians on boards to defer to citizens’ civil liberties is always a waste of time in the long run.

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

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 Archive.org.  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.