Whether commercial speech is permitted on a government access channel depends on the complex interweaving of local, state and federal law regulating cable television.  While some cable television franchises specifically prohibit advertising or require that public, educational and governmental (“PEG”) access channels be operated on a non-commercial basis, that is not uniformly the case.  Statutes or administrative rules in some states prohibit the commercial use of PEG channels. New York State’s rule has been the subject of at least two reported court cases. [i]

            In the absence of prohibiting language in the local franchise or state law, some government access channels managers may be surprised to learn that the U.S. Cable Communications Policy Act of 1984, as amended, does not specifically preclude commercial speech on PEG channels.   What is particularly important to note is that the U.S. Congress did not import the Federal Communications Commission’s (“FCC”) noncommercial limitation on PEG channels when drafting the 1984 Act.  In fact, the FCC’s 1972 PEG rules prohibited the presentation of any advertising material designed to promote the sale of commercial products or services including political advertising on public and educational channels only -- not government access channels.  [ii] 

            Cable television franchises that make no prohibition on commercial speech, satisfy what U.S. Supreme Court Justice Anthony Kennedy noted in his opinion in the Denver Area:  “Substantive limitations on the types of programming on [PEG] channels … [are] left to franchise agreements, so long as the channels comport in some sense with the industry practice to which Congress referred in the statute.”  Few courts have addressed complaints by cable operators about advertising on governmental access channels under federal law. The two courts that have addressed the issued carefully avoided deciding that a government channel can never run advertiser-supported or commercial programming under the First Amendment or the 1984 Cable Act.[iii] Quite to the contrary, the lower court in the Time Warner case explicitly ruled: “If a municipality determines advertising is useful to fund programming on local government at work or other appropriate PEG programming, I find nothing in the Cable Act that would prevent a municipality from doing so.”  [iv] 

            In the last few years, an increasing number of government access channels have accepted commercial advertising. For example, the City of Richmond, California, is selling advertising packages on its government access channel. The most expensive 30-day package is $475 for 32 plays with 24 during prime time (5 – 11 p.m.).  Each advertisement is 30 second, produced by the city staff.  Richmond’s franchise prohibits the commercial use of its government access channel and so the sale of advertising packages is designed to come within if not barely exceed the enhanced underwriting and donor acknowledgement rules adopted by the FCC and followed by public broadcast stations. [v]  Even a community where the franchise specifically prohibits the commercial use of PEG channels can legally seek underwriting.

            In fact, it may be advisable for communities to limit the types of advertising it accepts. Cities that accept advertising may create a public forum for all kinds of objectionable advertising. Therefore, they should exercise care in developing a written policy setting forth types of acceptable advertising.  In doing so, the City should be careful to avoid creating opportunities for arguments that it is engaged in viewpoint discrimination. [vi] They should consider the implications of accepting birth control or pregnancy advice clinic advertising, for example.  A similar issue arose when MTV just recently turned down a commercial that was against the war because it has an advertising policy against advocacy. 

            Perhaps an issue more unique to government access channels is the area of conflict of interest. Should a government access channel accept sponsorship funding from an entity that bids on City contracts, provides services to the City or is currently lobbying controversial legislation under the purview of the City? It is a good idea to involve legal counsel in the process of developing advertising rules. A clear written policy, well-trained employees, and an established line of authority not only help to prevent violations of the First Amendment, but also send a positive message to the public that the City is an active participant in the tradition of respecting and upholding the right to free speech. 

            Finally, the City might choose to adhere as closely as possible to the guidelines followed by public broadcast stations – using logos and slogans, which identify rather than promote and value neutral descriptions of products and services. [vii] Price information is forbidden.  Announcements containing a call to action are not permissible.  Announcements containing an inducement to buy, sell or rent are not allowed.  These kinds of policies will help convince cable operators to avoid court challenges to advertising on a government access channels.

            As the federal, state and local government squeezes budgets, government access channel managers may want to experiment with other means of raising revenues using their channels.  Numerous PEG channels report doing telethons in which local businesses donate items for sale or auction. There are pet adoption shows selling stray animals on-the-air, a cooking show selling cookbooks, bulletin board advertisements for garage sales (in lieu of signs in the public right of way), and an employment show selling sponsorships to local businesses. Of course, many PEG channels have successfully sought sponsorships for the broadcast of local high school athletics. Other PEG managers are talking about the impact of product placements – Indianapolis adopted a rule requiring public meeting coverage “to get tight shots of speakers in a manner to exclude commercial banners and logos wherever possible.”  [viii]  

            Government access channels are seeking new sources of revenues in many communities and are breaking free of years of self-imposed restraint requiring the strict noncommercial use of their government access channels. Channels not turned over to
commercial programmers – as New York City proposed to do several years ago with the

Bloomberg News – may not only prosper but also develop new supporters in the community.

LINKS:

PBS Guidelines for sponsorship messages

County of San Diego sponsorship guidelines

City of San Diego sponsorship guidelines 

City of Richmond, CA advertising rate card

This is very cool, a list of links to access centers around the country that have sponsorship or underwriting guidelines.

	back to NATOA Journal
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	2. I didn't know you did that: services to make your operation indispensable by Brad Clark
	3. Is anyone watching? by Robin Gee with David Korte
	4. Generating Revenue for your government access channel by Nancy Johnson
	5. Is Commercial Speech Permitted on Government Access Channels? by Neil Lehto
	6. Implementing Captioning on your government access channel by Darren Doerschel
	7. Spanish language programming for PEG channels by Ramon Torres
	8. DC's VOD by Darryl Anderson and Dan Westman
	9. Civic Media Build Social Capital: The Ethics of Government Access in the Marketplace of Ideas by Sean McLaughlin