Brian T. Grogan PowerPoint Presentation for National Association of Telecommunications Officers and Advisors (eNATOA) Webinar on August 11, 2014.

1. eNATOA
August 11, 2014
Brian T. Grogan, Esq., Moss & Barnett
Election Programming
On Local PEG Channels

2. What Channel?
• Public Access Channel: Local programming created by the wide
variety of individuals, groups and organizations within a community. The
producer typically has full editorial control. Public access channels,
equipment and facilities are usually available for use on a first come, first
served basis and the LFA and cable operator do not exert any editorial
control except over unprotected speech (e.g., obscenity).
• Educational Access Channel: Channels administered and
programming created by staff, faculty and students of local educational
institutions. Programs usually center around the activities of schools and
colleges in the community, and may include fully-televised courses of
instruction.
• Government Access Channel: Channels administered and
programming produced by local government staff and volunteers. Gavel-
to-gavel coverage of public meetings is the mainstay of this category, but
informative programs on such topics as fire safety, health and recreational
opportunities provided by local government are also offered.
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3. 3
Cable Act and PEG
1. PEG Capacity - 47 U.S.C. § 531 - LFA may establish
requirements in its local franchise with respect to the
designation of channel capacity for PEG use.
2. PEG Rules - 47 U.S.C. 531(b)(d) - LFA may require
rules and procedures for the use of the PEG channels.
3. PEG Funding - 47 U.S.C. § 542(g) - LFA may require
a cable operator to provide necessary capital for PEG
access facilities.
4. Operator’s Editorial Control - 47 U.S.C. § 531(C) -
The Cable Act prohibits cable operators from exercising
any editorial control over PEG channels.

4. 4
Cable Act and PEG
5. No Liability for Operator - 47 U.S.C. § 558 - Cable
operators are relieved from criminal or civil liability for libel,
slander, incitement, invasions of privacy and false or
misleading advertising for any programming carried on the
PEG channels.
- excludes the transmission of “obscene material”
- 47 U.S.C. § 559
6. LFA’s Editorial Control – LFAs are free to exercise
editorial control, subject to applicable First Amendment
considerations, but are afforded no federal statutory relief
from liability for the programming carried on PEG channels.

5. 5
Broadcast Rules Do Not Apply to
PEG
1. Equal opportunity
- All candidates = equal access
1. Personal attack / editorial rules
- Notice and opportunity to respond
1. Reasonable access
- Candidates must be afforded access
1. Fairness doctrine
- Discussion of conflicting views

6. 6
Best Approach
1. Carry election programming on “Public” access
channel
2. Treat election programming the same as all
other public access programing
3. Continue to use government access channel
for public meetings
4. Make certain your staff does not provide
production support
5. Do not make “content based decision”

7. First Amendment
• Do individuals have the right to run information
on PEG channels?
– Depends – P, E, or G channel
• LFA can exercise editorial control on
– Government and Educational channels
• It is safe to consider a “public” access channel as a
– Designated Public Forum for speech.
– Perry Education Association v. Perry Local Educators’ Association, 460
U.S. 37 (1983)
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8. First Amendment
• Public channel
– Assuming a “designated public forum”
– Government has limited authority to regulate based
on the “content” of the speech.
• LFA only has authority to adopt regulations
which affect, but do not suppress, speech.
• Such regulations are known as “time, place and
manner” regulations
– Valid only if they comply with the tests outlined by the
United States Supreme Court.
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9. Supreme Court tests
• United States v. O’Brien, 391 U.S. 367 (1968),
– Government regulation affecting first amendment
rights is justified,
• If it is within the constitutional power of the government;
• if it furthers an important or substantial governmental
interest;
• if the government interest is unrelated to the suppression of
free expressions; and
• if the incidental restriction on alleged first amendment
freedoms is no greater than is essential to the furtherance of
that interest.
– See also second test is found in:
– Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981)
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10. Election Coverage
Questions to ask:
1.On what Channel will programming appear?
2.What do your rules and procedures require?
3.Will your staff provide assistance?
4.Have you treated this programming differently
from other public access programming?
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11. 11
Best Approach
1. Carry election programming on “Public” access
channel
2. Treat election programming the same as all
other public access programing
3. Continue to use government access channel
for public meetings
4. Make certain your staff does not provide
production support
5. Do not make “content based decision”

12. 12
Thank You
Brian T. Grogan, Esq.
Moss & Barnett, A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340 phone / (612) 877-5999 facsimile
e-mail: Brian.Grogan@lawmoss.com