Cable TV and the Public Interest
Oppenheim, Jerrold N.
Cable TV and the Public Interest JERROLD N. OPPENHEIM Cable television could be the communications superhighway of 1985, not only replacing concrete superhighways but also performing the...
...We have no very spacious chance of finding much bloom on that peach ever again...
...Channel capacity should be maintained substantially ahead of reasonably predictable demand so that there will always be a channel available for any member of the public to use...
...In Philadelphia, for example, three of the original six franchises have been transferred without city council action and no government body has batted an eyelash...
...It proposes common carrier access, periodic review of system operation by a local citizens' advisory board at least every five years, protection of privacy, and a limit to the size of a cable company of twenty per cent of the state's subscribers...
...This difference between the underserving poor and the deserving rich is illuminated by the experience of the milk producers after they were affronted by the refusal of the Secretary of Agriculture to let them raise their prices...
...Even where there are FCC rules, they are often of small comfort to the citizen who relies upon them...
...Wherever he goes or whatever happens to him, let no one say that he ever stooped to compassion for any category of unfortunates except himself and his friends...
...the problem they represent is a national one...
...In some ways, Joliet is lucky...
...But it is much easier to point out the problem than it is to find a solution...
...For example, Ann Arbor, Michigan, is considering a special lowered fee ($2 a month) for its poorer residents...
...Rates must be regulated by cities or states in a manner that is "fair," a term never defined in the rules and therefore left to local judgment...
...Port O'Connor, Texas...
...Worst of all is the important role the Commission grants cities in cable regulation...
...Before any of these developments can come about, however, at least three huge obstacles must be surmounted: the Federal Communications Commission (FCC), municipalities that purport to regulate cable systems when they merely grant permission to use the streets, and the cable television industry itself...
...It has become too cozy with the industries it regulates and too distant from the citizens it theoretically represents...
...Yet all the FCC has done to date to steer events in that direction is to require twenty channels—one of which must be a censored but free public access channel...
...Nixon who, as they recall, complimented them on their involvement in politics...
...An exception is where citizens can bring countervailing pressure from a state agency, but that possibility exists in only a handful of states...
...This structure for the cable television industry has been recommended by the Wisconsin Governor's Commission on Cable Communications, the Cable Television Study Committee for Detroit's Common Council, and, in part, by the Massachusetts Community Antenna Television Commission...
...This is the second of two articles...
...And Discovery, Maryland, got only nine...
...FCC Cable Bureau attorney Steven Effros acknowledges that the Commission's rules are vague and ambiguous, but he defends them because they permit flexibility...
...When notice was finally given to companies that it was time to bid, they had only three weeks...
...Furthermore, most of the process that resulted in Calvert's franchise was conducted behind closed doors...
...In the most democratic of places, it also means that organized citizen watchdogs will keep track of what is going on and participate in the drafting of a regulatory ordinance and in the selection of a franchise winner...
...His cable colleagues include the traffic commission chairman and a nephew of a former zoning commissioner...
...The data so collected are useful for billing purposes and even to determine ratings, as long as the information remains anonymous...
...At this writing, the FCC had not acted one way or the other on most of these waiver requests...
...What have, the new rules brought...
...That means that no government can order a program of censorship on cable television...
...He might build one or two of these systems, but his principal purpose was to sell out to a large corporation that fully intended to build the systems but did not have the political connections to get the franchises in the first place...
...they may also sanction violations of state law that require someone to say OK before a company clutters up a public highway right-of-way with poles and cable...
...And you may feel squeamish about taking a necessary medical examination by cable if there is a possibility that someone other than your doctor is watching...
...A modified common carrier scheme, with little FCC or other Federal oversight, was recently proposed by a committee led by White House telecommunications adviser Clay Whitehead...
...This trend toward concentration of control over the means of communication into fewer hands called for dramatic action in a society that depends on the wide dissemination of information to better govern itself...
...Nixon, you must give him credit for an absolute purity if no very visible charm of spirit...
...There is nominal state regulation of cable in Nevada and Hawaii, but it has not amounted to much...
...Nixon's case must, I suppose, be judged by now to be a terminal one...
...and many places in Illinois...
...Nothing...
...The cable should operate as the telephone system does, as a common carrier...
...The towns of Louisa, Kentucky, and Bryan and Van Wert, Ohio, simply ignored my requests for a copy of their proposed franchises...
...Just to make sure someone is watching, perhaps a remnant of the Federal Cable Agency should remain to rove the countryside like U.S...
...Oppenheim's research was made possible through grants from the Charles F. Kettering Foundation to the Boston College Law School Publications Trust...
...A third principle of democracy has received belated recognition: privacy...
...But outside the top 100 areas, there are not many rules about service...
...In fact, it seems unlikely that the FCC, as it is now constituted, will ever be suitable...
...No wonder...
...In San Jose, California, according to a local citizens' group, Gill Cable does not keep its FCC filings available to the public, as the FCC requires...
...Local laxity is often attributable to simple ignorance and official willingness to proceed in the face of it...
...But what is the citizen's point of view with respect to cable television...
...The system has only twelve channels and one access channel...
...If citizen effort is provoked, the industry might develop in the way envisioned by government officials in Massachusetts and Wisconsin...
...The FCC, as usual, sat dumb while public exposure temporarily righted the wrong...
...four (possibly eight) more have the legal grounds to do so but so far have not used them...
...Often the city council involved is willing to let the violations go without a whimper, too, so citizens have no place to turn to prevent the kind of speculation that can have no effect other than to drive up the subscription price...
...Notice consisted of letters to thirteen companies and a tiny legal notice in a local weekly and the Chicago Tribune for everybody else...
...In fact, there are rules that governments should adopt to actively encourage free speech on the cable...
...And yet he might still be a President generally admired if he had been less clumsy than he was at concealing his official insolence and his private selfindulgence...
...The FCC keeps hands off these situations, leaving citizens at the mercy of their local establishments...
...No one can guarantee that a Federal Cable Agency will be any better than the FCC has been at protecting the public interest in cable television's development...
...How do you guarantee that all cities (or states) do likewise...
...Of course, there must be a public process of some kind so the local government purchasing agent can "attempt to infer the customers' preference...
...In the County of Baltimore, Calvert Telecommunications Corporation was granted the cable franchise even though it could show no firm financial footing...
...there are now more than sixty on file, many involving several cable systems...
...There is some good regulation, as before, where city (and increasingly, state) officials take their responsibilities seriously...
...Its rel evance to cable television is that two-way cable system operators can easily tell to which channel your televi sion set is tuned...
...With the help of a public advisory committee in each state, it should justify its decision in a written report that is publicly distributed...
...This cable agency would be deprived of the normal bureaucratic instinct for survival by its limited life...
...Also included was Frederick Ford, former chairman of the FCC...
...A simple clause in the franchise could have forced Continental to stay on until a successor was found...
...Often they cannot even obtain basic information...
...Obviously invasions of privacy must be prohibited, but in a manner more effective than telephone taps are prohibited now...
...Only about twelve per cent is wired today...
...the process of bidding subscriber rates down and quality of service up would eliminate monopoly pricing and profits [assuming the auction occurs frequently enough to account for unforeseen developments...
...Unhappily, these remarks do not apply to every state, so I hesitate to suggest a blanket plan...
...That can be summarized in three American principles: public participation, freedom of speech, and personal privacy...
...Teleprompter's system in Joliet, Illinois, refuses to comply with FCC rules requiring it to provide twenty-channel capacity and three access channels...
...and now the Department of Agriculture, after a month or two of principled resistance, has given in and let the children have their milk back...
...It is time we took advantage of the Federal checks and balances our Constitution provides...
...Attorneys, enforcing the law...
...For example, the FCC promises all communities in the 100 largest metropolitan areas (or "markets") three access channels...
...There are really two broad problems: "What would be the best form of regulation of cable television development...
...Then, the Federal Cable Agency would hold public hearings across each state to determine whether or not the proposed state plan would meet Congressional requirements, particularly the one for a public process...
...the simple reason that there were no votes there...
...and they seem to have responded by pledging two million dollars to the Nixon campaign and delivering at least half-amillion...
...When the public access channel fills up, the system need not expand unless all the other channels (most of which are to be leased commercially) are also filled...
...His policies were approved by a crashing mandate in the 1972 election...
...The industries affected by Commission decisions have not been so lazy, though, and the Commission simply responded to the interests that approached it...
...When it does, each city will finally get at least twenty channels and three access channels...
...More important is that the agency chosen is in terested in the citizen's point of view...
...the first, "The Unfulfilled Promise of Cable TV," appeared in the February issue...
...The result in Rockford, Illinois, was a six-year wait between cable franchise and operating cable system because the city had given itself no way to force construction...
...f Extension of cable service to all citizens of the state...
...Although one reason given by the county council for granting Calvert the franchise was its local ownership, Calvert had discussed the sale of a majority share to outsiders to raise the money to build a system...
...Then, Saginaw Cable TV Company applied the precedent to its situation—four Michigan communities totaling 12,000 people...
...But Whitehead's proposal would not take effect until half the nation is wired...
...Each state would have these years to develop its own way of doing so...
...Such places include Leon County, Florida...
...Twenty-five and forty-year franchises that guaranteed citizens virtually nothing (not even service) were not uncommon...
...Under this approach," explains University of Chicago legal economist Richard A. Posner, "a local agency would act as the purchasing agent of the residents in its jurisdiction for cable television service...
...What happens when private agencies try to do so...
...In such cautious, well-governed municipalities as Brookline, Massachusetts, or Palo Alto, California, that theory works well...
...So did Columbus, Montana...
...Some states are responsive to citizen needs and demands...
...So the question of "who" depends largely on circum stances...
...its mission would be to spend its time making sure that every state had an effective watchdog to enforce the mandate of Congress...
...Such municipalities as Ann Arbor and Winona are already trying hard to serve their constituents...
...Irving Kahn, president of Teleprompter, the country's largest cable operator, wound up in jail for bribing a majority of the Johnstown, Pennsylvania, city council...
...All procedures by which cable television decisions are made must be open to public scrutiny...
...So uninterested is the FCC in enforcing the law that it approved franchises for three Massachusetts cities and towns although the franchises had already been revoked by the city councils and boards of selectmen that issued them...
...But, more often, the problem is political clout...
...Those without such a tradition will be no worse off than they are now under non-enforced and inadequate FCC rules...
...City files on the subject (including council minutes) were kept secret, too...
...Even then, state agencies are sometimes reluctant to take on big powers in a state's largest city...
...this may include a limit on the number of homes one company can hook up in the state...
...Another elementary requirement of democracy is the right of free speech...
...In the last analysis, Whitehead—known largely for his unhappiness with today's television news—may be chiefly remembered for his hope that cable television "could engulf the primary broadcast service if cable's many channels are used to their full capacity...
...But as the litany of municipal ignorance and corruption already described suggests, it would be well not to count on that principle too heavily...
...Calvert's principals include the former head of the County Planning Board (who has also been head of the Regional Planning Council), a fund-raiser for the former county chairman, and the chairman of the county health board...
...In 1972, the FCC banned all broadcast-cable cross-ownership in the same locality (cable ownership by the networks is totally forbidden) and gave broadcasters a year-and-a-half (later extended by two more years) to get rid of their cable systems...
...Public participation is an elementary requirement of democracy...
...I do not have a definitive solution, but I do have some ideas...
...They turned to Mr...
...Who provides cable service over what system during the transition period...
...The crime of the disadvantaged is not that they don't vote but that they can't afford to contribute to campaigns...
...The FCC had granted a few when the Department of Justice pointed out that it felt "charged with a responsibility for promoting competition" where the FCC refused to do so...
...Little has changed under the...
...When he was through, his Cablevision Corporation of America had been merged into Warner Cable Corporation (the industry's number two) and he was sitting on Warner's board...
...It was not long before broadcasters started to ask for waivers at the FCC's public invitation...
...Four communities finally caught on and revoked his franchise...
...Future cable channels could be as abundant as telephone lines are today...
...The problem is that you may not want anyone to know you've turned on to the pornography channel, or that you are a regular reader-by-cable of Nixon's enemies' columns...
...MURRAY KEMPTON...
...Even as penitents, these people still can't quite tell the truth...
...If a city wants to require more than one public channel, it cannot do so without special permission from the Commission...
...The Commission also has nothing to say about what happens to an existing system if a city decides to change operators at the end of a franchise period...
...Nixon: "We didn't spend much time on the disadvantaged for...
...These three fundamental principles should be engraved in statute by Congress and thereby made applicable to everyone...
...There is no local government to protect these communities from such violations, and the FCC does not see the enforcement of state law as its problem...
...For it is his practices and not his policies that have brought him so low in the Gallup Poll...
...That is also accomplished by what the FCC euphemistically calls a waiver, and is most commonly done in unincorporated areas where the authority to issue a franchise is ambiguous or nonexistent...
...It could and should be as easy to be on television as it is to pick up a telephone...
...Having duly repaid the people who sell milk, Mr...
...Some of Mr...
...A common practice in the late 1960s and early 1970s was for an astute local businessman-politician to gather up a dozen or so local cable franchises by exerting various forms of political clout...
...A Coni gressional statute requiring public procedure, common carriage, and the protection of privacy will help, but will not obviate the need for an enforcement agency...
...The reasons for this perversion of the original concept of the Federal regulatory agency as an arm of the people (via Congress) is simple: Citizens left the FCC pretty much alone for a long time, thinking it would take care of them without being asked to do so...
...he is one of Highland Park's traffic commissioners...
...The only clear perception from the citizen's point of view is that the answer to these two problems is not the FCC or its present method of regulation...
...In the year between March 1971 and March 1972, the proportion of cable systems owned by broadcasters increased from thirty per cent to thirty-eight per cent...
...But one company already had its bid on file: Hyper Video, whose vice president brags that he has "broken bread with all but one of Highland Park's city councilors many times...
...What has the FCC done about this...
...FCC Cable Bureau Chief Sol Schildhause sums up the FCC's supine attitude toward the whole mess: "It's very hard to steal in big cities now because everybody's watching...
...new rules...
...Nixon then turned a face of flint to the persons who most need to drink it...
...He cut Federal grants to help pay for the milk that children drink in school by seventy-five per cent...
...Certainly the penalties for getting caught should be extremely severe...
...Political profiteering, long-term franchises, poor service, and media baronies growing like viruses...
...Other states should be encouraged to adopt such guidelines...
...This raises a dilemma that, at least for cable television in some places, may be resolved by state regulation...
...This may well become the most important civil liberties issue of the decade...
...This concession, of course, was announced in the cold and grudging terms deserved by kids so rotten as to have recorded no contributions to the Committee to Re-elect the President...
...and "What agency of government is most likely to apply that best form of regulation...
...States with an effective tradition of public participation will thus be guaranteed a responsive cable television industry...
...Findlay, Ohio, found itself blackmailed by a Continental Cablevision system that wanted a renewal and would abandon service on the day its current franchise expired, whether or not another system was ready to take over service on that day...
...Relying on the FCC is clearly not the answer...
...So Park River, North Dakota, recently got only a six-channel system...
...Here is how Magruder remembers the spirit of the days when he served Mr...
...In 1971, Donald Taverner, then president of the National Cable Television Association, admitted that "it is a matter of common knowledge that such franchise-granting is sometimes accompanied by less-thanethical practices on the local scene...
...One possible translation: sometimes we make a rule that we regret...
...Before the FCC wrote its 1972 rules, there was political profiteering, long-term franchises promising little or no service, and consolidation of control by media monoliths...
...Other communities would send information, but only for a price...
...Shelbyville, Tennessee, got thirteen...
...In no place is a minor or regional broadcast network signal allowed, an affront to antitrust policy...
...These channels should be available on a first-come, first-served basis to all comers (as only the one public access channel is now), whether users wish to climb up on a soapbox or talk about the intellectual development of the fruit fly...
...In at least three other Massachusetts communities, the FCC approved franchises that were already void by their own terms because the franchise holder (the ubiquitous Herbert Hoffman) had not built the systems within locally specified deadlines...
...The FCC Jerrold N. Oppenheim is a civil liberties lawyer and editor of "Cable Report," a monthly newsletter about cable television published in Chicago...
...another a municipal outlet, and a third educational— in each of the largest metropolitan areas...
...But when the owner of five cable systems in Stark County, Ohio, asked for a waiver to provide only one set of access channels for all five communities, the FCC agreed because the five communities together contained only 2,000 people...
...In theory, the body of government closest to the people is the municipality...
...Jeb Stuart Magruder, who ran the last Nixon campaign, is currently passing among us retailing pieties hardly less repellent when he is repenting than they were when he was sinning...
...With no Federal prodding, the Massachusetts cable commission announced these "guiding stars" last spring: f Separation of control of the conduit from control of its contents...
...None of the three franchises has been constructed...
...many are watched more carefully by citizens than are either municipalities or Federal agencies...
...And when it comes to system interconnection and the protection of privacy, the FCC is silent...
...Thus our astute businessman made a killing out of his political know-how...
...But I would not rely on state government in Delaware or Texas...
...In Highland Park, Illinois, the city council even tried to conduct its bidding in secret last fall by holding its cable television discussions in illegally closed meetings and executive sessions with no public notice...
...The company that owns the physical facility that carries your message should have nothing to do with the content of that (or any other) message...
...f Diversity of ownership of all elements of the industry, such as manufacturers and program producers...
...But then, say what you choose about Mr...
...Thereafter, the Administration rewarded the milk producers for their concern with public affairs by increasing the price of milk...
...Other ideas for regulation could be tried on an experimental basis in various progressive states and municipalities...
...Each is free and available on a first-come, first-served basis...
...Herbert Hoffman practiced this uniquely American brand of social planning in fourteen communities around Boston...
...The Congress protested and voted to restore the school milk subsidy...
...It is apparent that few agencies of government are going to protect the interests of ordinary citizens in the development of cable television...
...Many cable systems have been permitted with no franchise at all, even though FCC rules require one...
...This means no executive sessions, no unreasonable fees for copies of public papers, and no meetings held with out adequate public notice...
...The Citizens Planning and Housing Association of Baltimore (CPHA) filed an objection with the FCC because of the secret procedure, but so far the FCC has remained mute on the subject...
...The report of the Wisconsin governor's cable task force is similarly enlightened...
...Constitution...
...To solve that problem, Congress should—at the same time that it is legislating fundamental rules—establish a new agency with a two- or three-year life...
...public exposure in those states might provoke some responsive government...
...Before the current rules were adopted in March 1972, the regulation of cable television was a chaotic mess, ranging widely in quality because it was the responsibility, for the most part, of unrelated municipalities...
...An enterprising developer/cable operator in Tamarac, Florida, for example, guaranteed himself a cable market by selling his development homes with a deed restriction forbidding the use of outside television antennas...
...FCC approvals in these cases are not only a violation of the Commission's own rules...
...Perhaps cable systems (and others) could be rewarded with a bounty for every unlawful tap they reveal...
...The invasion of that right by gov ernments is prohibited by the First Amendment to the U.S...
...In the 100 largest metropolitan areas (including Chicago and San Francisco), Teleprompter will be required by the FCC to upgrade its deficient systems at some point...
...gives operators five years to build a system, when eighteen months is enough in most situations...
...Cincinnati's task force report, for example, goes for $5...
...But it is rare...
...As former Commissioner Nicholas Johnson pointed out in a recent law review article, "Rule waivers are readily granted [on cable television matters] when only public, as opposed to industry, interests are at stake...
...It succeeded, illustrating, in the words of Commissioner Johnson, "that today's bad precedent begets tomorrow's body of law...
...State oversight over cable television in Massachusetts and Minnesota appears to work reasonably well...
...It would conduct an auction," he suggests, "with the franchise awarded to the firm that offered the most attractive price-quality package from a subscriber standpoint...
...Neither has cable yet because of prolonged study and debate...
...Cable TV and the Public Interest JERROLD N. OPPENHEIM Cable television could be the communications superhighway of 1985, not only replacing concrete superhighways but also performing the functions now assigned to telephones, television sets, store catalogues, and even newspaper carriers...
...Another common franchise violation that the FCC ignores is the sale of franchise rights without the required approval of the body that issued the franchise...
...At that time, perhaps ten years from now, he advises against public utility status or rate regulation while "strongly" urging heavy reliance on the local supervision of cable that has already often turned out to be sloppy or corrupt...
...Greenville, Pickens, and Spartenburg Counties, South Carolina...
...Winona, Minnesota, did not like the treatment it was getting from its Teleprompter system so when renewal time came, the city council gave Teleprompter just a one-year extension and an order to upgrade the system technically...
...But those who are disturbed that they voted for people like these might better think awhile about what was wrong with us when we approved policies like these...
...PRESIDENTIAL PURITY Mr...
...But of his fourteen franchises, only one has resulted in an operating system...
...But the potential rewards of effective public policy in this area are rich enough to justify a rigorous effort...
...The examples that follow are only illustrative...
Vol. 38 • March 1974 • No. 3
