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...public and to promote the free speech right under deregulation, PEG indecency rules, which were abolished by the Denver Area Educational Telecommunications Consortium v. FCC court, should be maintained. It also suggests that with growing consolidation of the media and increasing concentration of power over public discourse, especially after the deregulation, access channel requirements can be justified as serving the significant government interest in promoting diversity of ideas on the basis that cable systems can be considered public forums or limited public forums. For that reason, this article suggests that the O'Brien test should be applied in deciding the constitutionality of PEG channels.
Cable has been expected to promote the public interest by virtue of its expanded channel capacity, its local nature, and the relatively easier access to it as compared to conventional television. Owing to these unique characteristics, cable has been dealt with as a hybrid--a communication medium that lies between newspaper and conventional over-the-air television. As a consequence, cable regulation has been applied differently compared to the regulation of other media and this has brought some controversies and conflicts. A core issue has been the problem of the First Amendment; that is, conflicts between cablecasters who want more of the rights of speakers and the public which wants freer access.
Public access channels are expected to promote freedom of expression in terms of providing diverse opportunities to the public. Thus, among the wide array of channels offered by cable, access channels, which include public access, governmental access, and educational access channels (PEG channels), are considered the most important as well as distinctive assets. For this reason, cable rules have mandated that some channels be set aside for access channels and, at the height of the franchising agreement process, some cities were able to demand that some channels be dedicated to community use.
Cable currently provides various types of television programs through many more channels than ever before. It becomes apparent, however, that the American mass media outlets are becoming more concentrated and controlled by a handful of companies, especially as a result of telecommunications deregulation. (1) Therefore, questions can be raised as to whether telecommunications deregulation is promoting increased diversity and access. In other words, it is important to examine whether public access is effectively working under the deregulatory atmosphere since passage of the Telecommunications Act of 1996. (2) The Telecommunications Act of 1996 (1996 Act) was legislated to promote deregulation by opening markets and removing ownership restrictions in broadcasting and telecommunications. Advocates of the 1996 Act proclaimed that the public interest could be better served by free competition in the marketplace, not by government intervention or regulation. Public interest groups and critics of the deregulatory policies, however, argued that the fundamental assumptions underlying the deregulation perspective--that market forces would compel operation in the public interest--were faulty or problematic. These arguments were combined with calls for the FCC to continue regulation. (3)
The operation of PEG channels has been maintained in terms of regulation at either the federal or local level until now. The process of franchising ultimately gives local governments a great deal of regulatory power in operating PEG channels. While there were some changes in terms of cable regulation in the 1996 Act, the Act promoted few regulatory changes with respect to programming content except that cable companies can refuse to broadcast programs that contain "obscenity, nudity, or indecency." (4) The structural regulatory change of the 1996 Act, however, appears to affect the public's access to cable. There also is concern regarding the relationship between multiple system operators (MSOs) and local governments in the process of franchise agreements because PEG channels have been governed at the local level since the Cable Communications Policy Act of 1984. (5)
This article examines the constitutional status of PEG channels in cable, and some controversial issues surrounding the access channels requirements under the deregulatory atmosphere. First, it focuses on controversial issues regarding PEG channels. Second, it reviews how courts have dealt with the conflicts between the First Amendment rights of cable operators and the public. Finally, this article discusses which test and rationale should be applied in deciding the constitutionality of PEG channel requirements so that the public can benefit by using PEG channels under the deregulation.
I. CONTROVERSIAL ISSUES SURROUNDING PEG CHANNEL OPERATION
The deregulatory trend produced major changes in the rules governing radio, broadcast television, and cable. Deregulation of broadcasting in the late 1970s continued throughout the 1980s. As the 1980s drew to a close, however, the FCC, responding to public pressure, undertook a series of attempts at re-regulating program content and types. Cable television was regulated by the passage of the Cable Consumer Protection and Competition Act of 1992. (6)
In late 1984, Congress enacted the Cable Communications Policy Act. The act codified many of the cable regulations that had been developed since the 1960s. The 1984 Cable Act amended the Commissions Act of 1934, so the FCC no longer had to justify its regulation of cable television. (7)
The 1984 Act (8) gave state and local governments the power to award franchises and to determine the qualifications necessary for systems to be awarded local franchises. Specifically, section 601 of the 1984 Act established franchise procedures and standards which encouraged the growth and development of cable systems and which assured that cable systems would be responsive to the needs and interests of the local community. (9) It also established guidelines for the exercise of federal, state, and local authority with respect to the regulation of cable systems (10); assured that cable communications provide, and are encouraged to provide, the widest possible diversity of information sources and services to the public (11); and established an orderly process for franchise renewal which protected cable operators against unfair denials of renewal where the operator's past performance and proposal for future performance meet the standards. (12) Section 611 especially stipulated a regulation concerning PEG channels: A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use. (13)
Additionally, section 622 of the 1984 Act stated that any cable operator may be required under the terms of any franchise to pay a franchise fee. The franchise fees paid by a cable operator regarding any cable system shall not exceed 5% of the cable operator's gross revenues from the operation of the cable system for any twelve-month period. (14) These types of basic regulations for the franchise process and PEG channels remained intact in the 1992 Cable Act. Section 531(a) of the 1992 Cable Act empowered the local franchising authority to establish PEG channel access. (15)
The Telecommunications Act of 1996 had a major impact on how communities conduct business with cable operators. Subject to strict rules and guidelines, local franchising authorities were...
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