Constitutionality of PEG Requirements Rears as Side Fight in Supreme Court Case
A fight before the Supreme Court about whether public, educational and governmental channels could be deemed state actors (see 1810170027) is also becoming a venue for a skirmish between NCTA on one side and NATOA and PEG access groups on the other over constitutionality of cable operators' PEG requirements. The respondents in the Supreme Court case also got support from the New York County Lawyers Association (NYCLA) and Columbia University's Knight First Amendment Institute in amicus briefs posted Friday. Oral argument is Feb. 25.
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No one had questioned the constitutionality of PEG access requirements until NCTA in an amicus brief said the high court also should look at whether the requirement cable operators set aside public access channels violates their First Amendment rights, said NATOA and the others in a docket 17-1702 amicus brief Friday. They said the court doesn't have a developed record on the burden PEG requirements put on cable operators, and NCTA doesn't identify such burdens. They said NCTA's focus on online and other sources of video programming is off base since Congress and courts didn't justify PEG requirements just because of the bottleneck control cable operators have over video programming distribution. They said the Cable Act allows franchising authorities to require channel capacity be set aside for PEG access, but doesn't mandate it, so NCTA would have to show no PEG requirement could be imposed in a constitutionally valid way.
NCTA in its amicus brief last month in support of neither party (see here) said the Supreme Court says the First Amendment protects cable operators' editorial discretion over their programming and that forcing them to give up control over PEG channels intrudes on those rights. It said the court should make clear it's not implying or deciding the PEG channel requirement is itself constitutional.
New York City clearly intended to create a public forum when it created the nation's first PEG channels in the 1970 Manhattan cable franchising agreement and that goal "should be respected," NYCLA said. Knight said the issue of when and where public forum doctrine applies to expressive spaces on private property, but actors established by government could come up in the court's consideration and there could be "deleterious and far-reaching implications" for expressive spaces if the court said the only application is to government-property. It said enforcing the idea that public forum doctrine applies only to property formally held by government would be tough online, since property rights there are often ill-defined.
The Cato Institute in an amicus brief last month in favor of petitioners Manhattan Community Access Corp. aka Manhattan Neighborhood Network said the respondents need to show the state acted in concert with MNN. The Internet Association and Electronic Frontier Foundation in amicus briefs last month in support of neither party (see here and here) urged a narrow ruling because of how the ruling could apply to other interactions between state action and public forum doctrines.