President's Message | June 17, 2019
Supreme Court Makes Ruling in MCAC vs. Halleck: What does it mean for your station?
The US Supreme Court in a 5-4 vote written by Justice Brett Kavanaugh ruled Monday morning that a private operator of a public access channel was not a state actor for the purposes of First Amendment restraint on speech, and remanded the case to District Court. Justice Sotomayor issued the dissent in MCAC v Halleck. You can find the
ruling (and legal history of the case) online.
Significantly, the majority opinion did not accept NCTA's amicus argument that all PEG channels are unconstitutional and ruled narrowly on the case itself. This is a victory for ACM and our amicus partners Alliance for Communications Democracy and NATOA.
The ruling stated that New York law regarding public access channel administration (or any other state's laws) were not touched specifically by the decision which turned on whether Manhattan Neighborhood Network was deemed to be a state actor because of its operation of a designated public forum. The majority found that a private company did not meet the same obligations under the First Amendment because channel operation wasn't exclusively a government function.
The ruling also clearly states that a public access channel operated by a local government WOULD be subject to First Amendment scrutiny.
What does this mean for you in your community?
The ruling didn't examine local and state laws governing public access administration, so you should abide by those as you administer channels. Further, if local performance agreements or ordinances codify how your channels operate, you have this as both a guide and a liability shield.
There are plenty of other questions it raises though.
How does it affect media liability on a channel? If a viewer complains about content on a public access channel, is a private operator now at risk of liability, that the content is THEIR speech? My sense is generally no, because of those local agreements and policies. But it remains to be seen whether this ruling will encourage more media liability lawsuits against access channels for content they transmit.
Could a private access channel operator now exercise viewpoint discrimination to silence voices it doesn't like? Perhaps. But again, something OTHER than the First Amendment has to protect speakers from that type of editorial restraint according to this ruling.
What the ruling also means is channels should have clearly written and easily understood policies for both managing content on channels and discipline of producers. ACM's advice is to respect viewpoint diversity as you administer public access channels in a fair and equitable fashion.
Maryland Senator Chris Van Hollen Joins Those Opposing Cable Franchising Fees Rule-making by FCC
Senator Chris Van Hollen of Maryland has questioned the FCC's rationale for trying to change the nature of franchise fees in its rule-making on cable franchising. In a letter to Chairman Ajit Pai last week, V
an Hollen stated his concerns about the proceeding and its effects on communities in Maryland and across the country.
There are now 15 US Senators and 22 Representatives who have stated concerns or oppose the rulemaking.
Van Hollen pointed specifically at the legislative history of the Cable Act in his letter - pushing back on the claim by the FCC Chairman that a franchise fee could be a non-monetary form of payment.
ACM wants to thank Senator Van Hollen for his support of the people of Maryland and communities across the country.
And thanks to ACM member Montgomery County, MD for their work educating the Senator on this important issue!