Public Nuisance: The Costs of Giving Everyone A Say on Cable Television

Think of public access television as a kind of hyperdemocratic medium which allows any citizen with a couple of hours to spare to say anything they want on air. And do they ever: from UFO shows to black power screeds to conservative and religious roundtables. Unlike PBS stations, which are programmed by government agencies or operated by local grandees, access channels are usually run out of community centers open to the public. You could go in today, take a couple of classes, and in no time be using the cameras, studios, and editing rooms, to film and transmit your mug to millions of cable subscribers in your town. Depending on the local rules, public access is available to anyone for free or just a few dollars. Of course, that usually means everyone has to pay for it.

Cable access television as we know it was pioneered in New York City, so it’s fitting that it has achieved its greatest degree of extravagance in Manhattan. There, cable customers can tune in to Chillin Chillin, described as “interviews, music, and variety show hosted by Tipsy.” Or Goddesses, a show about “fashion and size acceptance,” or Hello . . . The Show, “about everyday things for everyday people.” Several Bible study programs are available, as well as Farrakhan, Our Champion and Conversations With Orkie, which features “channeled lectures” and meditation. There’s also Larry Litt’s Blame Show with “political and social sketch comedy for angry liberals,” as well as The Libertarian Alternative talk show. And that’s just on Mondays.

“At first my show was like a spoof on UFOs,” says Harvey Wiesenberg, a 62-year-old retired shoe salesman, about his live call-in show, Invasion Earth, which runs weekly on Manhattan Neighborhood Network, the borough’s public access channel and one of the largest of its kind in the nation. Wiesenberg himself is not a cable subscriber, but he has a rapport with cable subscribers who catch his show. “I would do some comedy and jokes I would bring in about my therapist, but then I found as the months went on that my audience was serious about UFOs and they know a lot, and I didn’t know nothing, so I had to do research on UFOs.”

Invasion Earth features Weisenberg at a desk excitedly reading articles from science websites and taking the occasional call. The name of the show, the call-in phone number, and his e-mail address are superimposed clumsily over him in a creepy B-movie font. Sci-fi-ish electronic music plays in the background.

Reading an article about rainfall, Weisenberg asks, “Why is this important?” He answers himself in a pronounced New York accent, “Because it has to deal, I think, we learn from our own planet, and then we take what we learn here and we transpose it for when we look for life elsewhere.”

He tries to take a call but can’t hear the caller, apologizes, saying the line is dead, and moves on with the show. The television audience, however, can hear the caller just fine. While Wiesenberg is speaking, the caller begins to shout, “I’m alive, Harvey! Harvey, I’m alive! I’m alive!!!”

There are an estimated 2,000 public access centers in the United States producing more than 15,000 hours of original programming like Wiesenberg’s show every week.

Who’s Footing the Bill

Viewers and advertisers pay for commercial television. The cable industry funds C-SPAN. Donors support PBS. So who pays for the eclectic smorgasbord that is public access television? Cable subscribers, whether they care for it or not.

Before a cable company can open for business in a given community, it has to get permission from the local government. Permission comes in the form of a franchise, and federal law allows local governments to require that a cable company, in exchange for a franchise, give the municipality up to five percent of its revenue, provide it with channels at no cost, and supply other financial and in-kind concessions.

This regime has its origins in the 1970s. Back then, cities discovered that the new cable industry was ripe for extortion because it needed access to the local rights of way to run wires under city streets and over telephone poles. New York Mayor John Lindsay once referred to cable franchises as “urban oil wells beneath our city streets.” Cable companies were only too eager to comply because franchises often assured them a monopoly. Only recently have new entrants such as telephone and power companies been allowed to compete with cable companies to offer video services.

The 1984 Cable Act ratified the power of localities to demand channel capacity from their local cable company, as well as financial support for the channels. The amount of support and the number of channels to be relinquished is not specified by the act, but is instead left to local governments and would-be franchisees to negotiate among themselves. In one instance, Dallas-Fort Worth was able to extract 24 public access channels from the local cable company.

There are typically three types of channels in a municipality: public, educational, and governmental. Collectively, they are known as “PEG” channels. The city itself will usually run the governmental channels to air council meetings, mayoral press conferences, public safety shows, or local boosterism. Municipalities will often hand educational channels over to the local school board or to some other educational institution, which will pave the way for children’s shows, adult training, public health information, and/or other educational fare. The public access channels are not operated directly or programmed by the government, however. Municipalities will commonly create or choose a nonprofit corporation to run them. The nonprofit’s role is not to produce shows or select programs to air, but simply to be an on-air conduit for any citizen to speak his mind.

Public access corporations typically get their funding from the municipality, which allocates to them a portion of the franchise fees. According to the National Cable and Telecommunications Association (NCTA), the cable industry’s lobby, cable operators paid $2.4 billion dollars in franchise fees in 2004. Some cities, such as Washington, D.C., will also add a fee to subscribers’ cable bills to fund public access. And some franchise agreements require that the cable company dedicate facilities, such as studios, cameras, and even personnel, to public access.

What this means is simple: Subscribers ultimately pay. As economists have often pointed out, the cost of inkind concessions and fees that cable companies are forced to give cities is simply passed on to consumers as higher cable rates.

“The money to fund public access comes from the subscribers’ franchise fee, which is typically 5 percent of their monthly bill,” says NCTA spokesman Brian Dietz. “The five percent is dedicated to some fund on behalf of the city, so whether it’s [used for] public access or the general fund — which funds fire, parks and recreation, garbage, et cetera — the money does come out of the subscriber’s pocket.”

Politically speaking, however, it’s not clear that getting rid of public access would lower anyone’s cable bill. As Dietz notes, “If public access wasn’t there, the five percent would probably still exist.”

Some of the Things You Pay For

Public access supporters will tell you that the channels are necessary to promote healthy community debate and dialogue.

“There is a need for anybody in a democracy, no matter their viewpoint, to be able to express themselves and be an active participant in community conversations,” says Nantz Rickard, executive director of DCTV, Washington’s public access corporation. “They need to be able, in this day and age where our communities are very large, to connect with one another through a broad-based medium, and one of our most powerful media for that is television.”

Andrew Schwartzman, president of the Media Access Project, a public interest law firm that advocates for local access, agrees.

“First of all, it’s an important counterbalance to some of the commercial media,” he says. “Second, it promotes one of the goals of the Communications Act, which is localism. And third, it facilitates a kind of local democracy, and local franchisers have an obligation to try to fulfill the First Amendment goals of free flow of information in society.”

True to these sentiments, public access is replete with programs discussing issues that probably wouldn’t otherwise be heard on commercial media. The reason for that, however, might not have to do with the editorial suppression of any particular point of view so much as the cold hard fact that there isn’t a market for much of what’s on public access.

Some programs, like Aunt Ketty, produced by students from the State University of New York and aired over New Rochelle public access, have proven controversial. The show featured a transvestite who is raped by a large floor lamp and then (rather graphically) gives birth to a smaller desk lamp. The August 1996 episode of Sick & Wrong in New York showed the host using a serrated knife to cut the heads off three live iguanas, which he proceeded to skin and grill. In 1992, a San Antonio program showed viewers how to make a homemade acid bomb. One week later, such a device exploded in a police officer’s driveway.

Hate groups have also frequently utilized public access. In one incident in 1989, Kansas City chose to shut down its public access channel rather than air a Ku Klux Klan-produced show. The Klan won a First Amendment lawsuit against the city, which had to reinstate the channel and play the show.

The most notorious public access show, however, might be The Great Satan at Large, a live call-in show produced in Tucson, Arizona, in 1991. The show featured a masked “Sexecutioner” who partially undressed women and fondled their breasts. It also contained exposed genitalia, masturbation, clips showing mutilation and real or simulated murder, and discussions with callers about bestiality and anal sex.

Of course, those shows are the exception and not the norm of public access television. Nevertheless, they are a testament to the uncensored nature of public access. Uncensored not just in the sense of being free from editorial control, but also free of any check by market forces. For this same reason, the vast majority of public access television is not controversial, but simply banal.

An afternoon of the Manhattan Neighborhood Network typically yields such fare as Telepsychic with Morris Fonte, who “tunes into your vibrations through extrasensory perception, voice vibrations, and auras” and gives advice over the phone; The Tooth Fairy, a dental hygienist’s advice program, one episode of which features black charred eggplant toothpaste imported from Japan and sold on the Home Shopping Network.

Or, tuning into The Walter Banks Network, which the MNN program guide describes as a “sports talk show,” one finds neither sports nor a talk show, but instead one Walter Banks starring in a crude but eager imitation of a sci-fi space adventure. An announcer says we’re watching “Starship Commander, Episode Fifteen, Upon the Twilight of War.” Wearing homemade costumes, and sitting in front of a backdrop meant to look like a spaceship’s interior, the actors literally read their lines from a script. In one particularly inexplicable piece of dialogue, Banks says, “Captain’s Journal continueth, Sir William Harrison recording. We’re now entering Corinth space. I’m glad I got here before Admiral Lacey decided to attend the Corinth interspacial committee commission proceeding dealing with Earth’s complaint against the Cavolian Empire.”

One has to ask: There have been fourteen episodes before this?

Meanwhile in Washington, D.C., over half of one public access channel’s programming is religious, from Bible Holiness Hour to Farrakhan Speaks to What is Scientology? As Wiesenberg explains, public access is nothing if not diverse. “They offer a range from community talk shows to shows like myself and even to sex organ shows or scantily clad women shows, so they have a wide range of shows there which are not slick.”

But what is the value of public access diversity for public access diversity’s sake? While no doubt some community affairs programs will have redeeming social value, it can’t be overlooked that public access often amounts to little more than a kind of old-school blogging. Sure, everyone is empowered to speak. But how many blogs are worth reading? How often does an orator at Speakers’ Corner in Hyde Park offer more than conspiracy theories or prophesied doom? At least you don’t have to pay the speakers at Hyde Park or bloggers on the web. The same can’t be said for public access.

More on the Cavolian Empire

“It’s a kind of electronic soap box,” says Schwartzman, and that’s exactly how Congress described the medium when it authorized localities to require public access channels. The legislative history reads, “Public access channels are often the video equivalent of the speaker’s soap box or the electronic parallel of the printed leaflet.”

In the days of soap boxes and leaflets, however, speakers owned their own boxes and paid for their own printing. But the interpretation of the First Amendment espoused by legal theorists such as Jerome Barron and Cass Sunstein in the 1960s and 1970s — an interpretation that still undergirds public access today — suggested that the mass media was a public forum and that citizens therefore had a right to access it.

The website of Brooklyn’s public access channel makes the principle clear: “Public access is founded on the idea that every person who has a message has the right to speak and access to the airwaves.” Bolstered by Supreme Court precedent that affirms the government’s power to regulate broadcasting in the public interest, this conception of the First Amendment is alive and well today.

“What we need is the basic capability — and we do have this right — to be able to speak in whatever broad-based medium is ubiquitous to be able to be an active participant in community conversations,” says DCTV director Rickard. “If we don’t have that, then the whole point of being able to have free speech almost becomes meaningless because we’re not really in the conversation.”

If only those who own the media are able to speak, she explains, “everyone else becomes just a passive recipient or a fringe voice out there in the wilderness.”

Adam Thierer, author of the book Media Myths: Making Sense of the Debate over Media Ownership, takes exception to the idea of an affirmative First Amendment. “This is a truly radical conception of the First Amendment; radical not only in how much it diverts from the Founders’ original understanding and intent, but radical also in the sweeping scope of government intervention it counsels for our society.”

“What is most troubling about such media access theories is that they presume the existence of a mythical ‘right to be heard,’ or a ‘right to respond publicly,'” Thierer says. “In essence, media access advocates are arguing that once a given media provider becomes popular enough, everyone has a ‘right’ to use it. By this logic, if you build a large soapbox in your backyard, and are informative or entertaining enough to attract and retain an audience, the media access advocates apparently believe that the government should mandate that you share time on your soapbox with others in the name of ‘diversity.’ They care little about the property rights you have in that soapbox, the effort and cost associated with your efforts to build that soapbox, or your editorial freedom to determine what is uttered on that soapbox.”

Even though cable companies provide a popular service, proponents of public access believe that’s not enough to give in return to a community for use of its public spaces. “Because we’re talking about public rights of way, this is not an entirely private company issue,” says Rickard. “If you were to ask me why just cable, I would say it shouldn’t be just cable. It should be anybody who is using any kind of public broadcast spectrum, radio spectrum, or rights of way to run any kind of telecommunications
wires, cables, or anything. Part of giving back to the public for using its asset would be to allow it to communicate on that asset.”

But it’s not clear how the broadcast media is different from any other business that uses the public rights of way, but for which a government mandate to carry someone else’s message would be a clear First Amendment violation. Take newspapers, for example.

A newspaper runs delivery trucks every day over city streets, which are public rights of way. And unlike cable’s wires, which are buried once and then forgotten, trucks cause traffic congestion and wear and tear to streets. Newspapers also create litter that must be collected by the city, and vending boxes take up space on sidewalks — also rights of way. One study of Berkeley, California, found that these types of side effects cost taxpayers thirty times as much as those caused by cable. Yet the Supreme Court has held that it is unconstitutional to force a privately owned newspaper to run a message against its editorial will.

Public Television for the Right

By day, James Caviness is a Washington, D.C., cab driver. But on Tuesday nights the intense-looking 60-year-old is beamed into District homes on his live call-in show, Hear the Real Right Side. According to his website, he is “the most dangerous right wing conservative in America today, whose sole purpose in life is to refute all of the phony feel good propaganda that fumigates our society today.”

“Our pride and joy, our national anthem, should always be played, or sung, in the native tongue, and that is English,” he intones behind a desk. He wears a suit with an American flag tie. On the desk before him are foot-tall statuettes of an eagle, an elephant, and a donkey, each painted with red and white stripes and star-spangled blue fields. In the background John Philip Sousa marches play.

The civic-minded Caviness, who is running for mayor as a Republican, has been involved with public access for five years and says he does it foremost because he enjoys it. “I also think that there is a strong message that needs to get out to blacks in particular, but more toward young blacks,” Caviness says. “I think that they need to hear a different side than the Al Sharptons, and the Jesse Jacksons, and the Bill Clintons, and all of that. I don’t think that they understand that there is another side.”

Public access allows a conservative like Caviness to get his message out, even if it means participating in a redistributionist government program. “On the real premise of the government demanding that Comcast and RCN carry the public access channel, I have reservations,” Caviness says. “But at the same time, that’s my personal opinion. It’s here. Reality is that the system is here, and as long as it’s here, I have the right to use it.”

Mark Selzer, host of The Libertarian Alternative, has a similarly pragmatic reaction. “I think it’s true that it is in a sense un-libertarian, but it is still a medium that if I don’t use it, it’s still going to be there.” Selzer, 41, has hosted guests such as Libertarian party presidential candidate Harry Browne and Native American activist Russell Means. He produces the show in Hollywood, California, and syndicates it to public access stations in ten states.

“I definitely don’t think that I have a right to be there,” Selzer says. “I think I have a right to speak, but I think that I don’t have a right to a part of somebody’s business.”

What he lacks in ideological purity, Seltzer makes up in dedication. “There’s a cliché that art is 99 percent sweat and 1 percent inspiration, and that’s very true,” he says. “Most of it is just a lot of hard work and not a lot of fun. There’s absolutely no pretensions or glamour about it. Sometimes I have to put the make-up on the guests, I have to put the set together, everything is done by me. And then I have to be in front of the camera and try to be on.'”

When he started producing his show eight years ago, Selzer would watch tapes of himself with the sound turned off to study his mannerisms. He would then watch television professionals to study their presentation. He would also listen to himself without watching in order to perfect his diction.

Selzer takes his show seriously, and he expects others to also. “Public access usually provides for you some kind of a studio and sometimes they have camera people and producers,” he says. “But generally what you get is something that looks and sounds like public access. What I did was I went in with a whip and a chair and tried to get something out of them that was really good. At first they resented me, but then after a while they realized that I’m not going away, I’m very serious about this, I’m going to get these shows done, and we’re going to try to make them look like real television shows. And they saw how hard I was working on it and they would respond.”

Making an above-average-quality show required not only an investment of time, but of money. Selzer, who runs an online mail-order business, has benefited from some donations, but he often reaches into his own pocket.

“Mostly I finance it on my credit cards. I run my credit cards up until I can’t do it any more,” he says, laughing. “Then I try to raise some money, and I get back to work at my job and attempt to pay the credit cards down, and then I move forward. So, you have to be very, very dedicated.”

It’s all about the fans

Despite all the time and money spent on public access, it’s not clear anyone is watching. Nielsen ratings are not available to public access channels unless they pay for it, and it is expensive. So access channels rely mostly on anecdote to measure their reach.

“We get the same story from everyone who has a show here,” says Rickard. “They say that people stop them on the street or in the grocery store and they talk to them about their show. I know personally from my experience that if I’m ever on television for even five minutes, I get everybody and their mother stopping me and talking to me about what I had to say.”

Wiesenberg relates the same experience. “On occasion I will meet some of my audience in the subway or I’ll meet them on the street. I’ll be walking on 14th Street and there’ll be some kid on a bike who will call me over,” he says. “It’s nice when somebody stops me off and says, I watch your show and I like what you do.”

But the anecdotal evidence can cut both ways. Last year in Annapolis, Maryland, a white supremacist group aired a racist program for three straight nights on public access. The county executive, who said free speech laws forced her to allow the video to go on the air, downplayed its effect, saying she had no evidence that anyone watched it and that no one had called in to complain.

One school board official in Massachusetts told the Boston Globe last year that his blog got a much better response than the bi-weekly public access show he hosted. “Without much feedback, I started wondering who was watching,” he said.

Which raises the question: Doesn’t the Internet, with its empowering blogs, Podcasts, and YouTube videos, obviate the need for public access television?

“Not yet,” says Rickard. “Maybe 20 years from now that might happen. Right now the technology doesn’t really support having television programming on the Internet in any kind of good way or that can reach a large number of people.” More importantly, she says, we have a very different cultural relationship to television than we have to computers, and many people don’t even have computers.

“There’s a difference between what I would call citizen expression — or even citizen journalism — online and the more organized videography that takes place at an access channel,” says Schwartzman. Public access, he says, offers “studios and facilities to produce things at a higher level than individuals can at home.”

But, as Selzer notes, that might not be enough to draw an audience. “The trick is to make people think that they’re not watching public access,” he says. “As soon as people think they’re watching public access, they will probably strain their finger on the remote control trying to get out of that channel.”

“There are a lot of poor-quality shows that have people that don’t look or sound like they should be on television, which could be an attraction,” he says. “Some of the shows are wonderfully creative and strange, but I wasn’t really going for the wonderfully creative and strange things. Some people do good shows that in the end are interesting, but generally public access has a bad reputation for being very poorly produced and being very boring programming. And that may be an attraction to some people — the ‘amateurness’ of it. I always try to avoid the ‘amateurness’ as much as I can.”

Wiesenberg, on the other hand, seems to embrace the dilettantish appeal of public access. He recounts the show in which he couldn’t hear the callers while the viewers at home still could. “Next thing I know I spoke to my UFO friend and he said the show was a riot. I said why? Because throughout the whole time you were talking, the guy was cursing!”

Asked if anyone’s watching him, Wiesenberg, the noncable subscribing UFO-show host, says, “I don’t know. I think so. But it really makes me feel good inside that what I’m doing is appreciated by the viewers of all ages.”

And he’s right. Even if not for the reasons he intends, we have to appreciate Wiesenberg. As much as one might dislike the market-defying and confiscatory nature of public access, one can’t help but be won over by the hard work of Selzer and Caviness and the sweet and endearing eagerness of the likes of Wiesenberg and Banks. As long as we’re paying for public access, maybe we should tune in to see what random and inexplicable treat is on today.

Jerry Brito is a legal fellow in the Regulatory Studies Program at the Mercatus Center at George Mason University.

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