01/08/90 Board of Public Works Minutes

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REGULAR MEETING JANUARY 8, 1990 any organization whose intent is to sway public belief. He stated that the public access channel is for public education or governmental use of which the program "Race and Reason" is neither. Mr. Trowbridge informed the Board that he has had communication with Mr. Alfred Sikes of the Federal Communications Commission and has been advised that he has a right to say he does not want the program on the air as it does not go along with community standards and he is therefore stating that he does not want the program allowed on the public access channel and he feels it does not go along with City standards. In the matter of the City being liable should the show be pulled off the air, Mr. Trowbridge stated that the Board has the power to pull the show as it is a direct violation of rules. He therefore stated that the show should be pulled off the public access channel. Mr. Trowbridge asked that the Board take action by voting on the matter or taking his concerns under advisement. He informed the Board that it is his opinion that this is not a First Amendment issue. Board Attorney Jenny Pitts Manier advised those present that the Cablevision Act allows the City to require public access programming and as such, the City has, as part of the Franchise Agreement with Heritage, required the creation of the public access channel. The public access channel was created as a vehicle for public expression on a first come first served nondiscriminatory basis. In essence, the City has created a public forum and First Amendment rights attach as a result. The Board cannot enforce rules that exclude users from the public forum based on their viewpoint and cannot exclude a sponsor based on the program content. Ms. Manier stated that the Board's purpose in doing so would be a proper area of inquiry by a court. Ms. Manier advised that Mr. Sikes' letter referred to a specific Section of the Cablevision Act that on the one hand allows the City to require the establishment of a public access channel and on the other allows the City to enforce rules and regulations under which public access channels can be used by Heritage for uses other than public access. This section does not address Mr. Trowbridge's particular concern and makes no mention of community standards. Ms. Manier stated that it is her understanding, based on a recent telephone call from Heritage Cablevision to the City Attorney's office that a meeting will be arranged with Heritage Cablevision, Mr. Trowbridge and someone from the City to discuss the issue and Mr. Trowbridge's concerns. Ms. Manier reiterated that the Board has no authority to act in this matter. The City created the use of the public forum and the First Amendment rights are implicated by that action. To exclude a show because of the content or viewpoint is government action taken to suppress speech. Mr. Trowbridge questioned the rules that were written at the time Heritage was given the franchise agreement. Ms. Manier noted that rules can be written that perhaps can be illegal or unenforceable. She also noted that the provisions of the Cable Act cited by Mr. Sikes, and which the Heritage rule is understood to be in violation of, have been interpreted as creating substantive federal rights, the deprivation of which under color of state law, is actionable under federal law. She advised that Heritage's rules will be discussed at the proposed meeting. Mr. Leszczynski advised Mr. Trowbridge that the Board is not here to debate the issue. The City Attorney's office has reviewed Mr. Trowbridge's concerns and has advised that there is nothing the Board can do in this matter as anyone has the right to use the public access channel. He noted that there is case history in