Cable Advisory Council South Central Connecticut

Resolution on Community Access Policy & Procedures
Initial Reviewed for adoption by CACSCC on 2.25.2010. Final Review and Adoption April 22 2010.

WHEREAS;
Since Oct 2009 several complaints have been logged with CACSCC [1] about the clarity and application of community access policy. Under CT Law [2] CACSCC is obligated to review complaints related to the provision of Community Access (as established by Federal Law [3] for non-commercial [4] programming.) Also as part of its mission [5] CACSCC secures and administers Broadcast Liability Insurance [6] for the non-commercial [7] Community Access Stations.

Community Access performance and liabilities are directly related to how policies are documented & managed and policies have distinct components 1) program content, 2) facility use and 3) underwriting/sponsorship ALL governed by the same core principals.

Filed Community Access Annual Reports [8] show no evidence of annual policy review. Within the Branford Comcast Area [9] similar policies are handled differently [10] . Inter-town program distribution cause these differences to present more challenges to viewers, producers and access centers. Complaint activity demonstrates that producer credit information; and, access center and CASCC public contact information is critical to processes that support viewers, producers and access centers.

On 12.7.2009 [11] the DPUC [12] sighted local community access policy as the basis for grievances and consequences [13] and said that what constitutes non-commercial programming was not clearly defined in local policies [14] and concurrently the DPUC confirmed that CACSCC has a role [15] in the formulation of policy

In conclusion, the 2002 [16] advisory ruling by CACSCC related to the adverse impact of eliminating TV21 [17] on local producers which asked town-specific access centers to amend town specific policies to eliminate local sponsor requirements for in franchise producers has contributed to the current lack of clarity, in part due to the absence of policy review suggested by the DPUC at that time. CACSCC attempts to participate as a partner [18] with the cable company [19] in oversight of Community Access [20] esp. with regard to statutory and regulatory compliance but finds this challenging for several reasons. (1) [21] (2) [22] . Since the community does not have the benefit of a community needs assessment [23] given the transfer of the franchise status to a Certificate of Cable Franchise [24] , CACSCC has done due diligence to define the perception, trends, and risks and give guidance herein

The following findings are associated with review of complaints 2009-2010:

Roles & Responsibilities

1. Perception: Advisory Council has no role in Community Access Oversight

2. Assumption: All Community Access Stations must allow sponsorship

3. Producer assumption: All content & distribution rules are the same. Impacts inter-town bicycling practices.

4. Bicycled program that get scheduled without the producer being given copies of local policies & procedures and all policies are not publicly available.

5. Access stations: Limited development of crews/technical training of users.

6. Access stations forgoing formal user training for 1-1 training without any associated user certification/validation

7. Production credits listing access centers staff as producers

8. 1^st come 1^st serve violations in scheduling and facility use

9. Government Access production responsibilities have shifted over the years between access centers and local government. The production responsibilities need to be clearer to the public. Items causing confusion include use of AccessCenter bug/logos within programs, absence of closing credits and website text that reference both government and the station having responsibility for content.

Program Trends

10. Practice of advertising-like trends [25] defy easy labeling as commercial or non-commercial

11. Video Programs with associated Web Sites [26] are being developed concurrently to attract and inform viewers. Web Sites include .com with video program related items for sale, seminar references and links to host personal business websites including hosts doing programs related to their personal business

12. Websites, e-mail addresses and telephone numbers as graphic captions within programs

13. Internet addresses and telephone numbers on banners used in set design

14. Internet address of businesses in credits without sponsor plan (i.e. documentation of financial interests of business in program)

15. An increase in short programs of 30 sec to 10 minutes that do not easily get incorporated into a published schedule which producers may promote to Internet concurrent with, prior to, or instead of the Access Channel

16. Digital content is available via Internet or Server distribution sites and there is so much content available from these sources that stations can exceed their distribution capacity

17. Public Producers are marketing beyond their towns in methods that impact staff roles and duties associated with processing such content including staff sponsorship of programs from pegmedia [27] .

18. More programs but less diversity or representation of local interests

Distribution

19. Access Stations distribution on U-verse [28] as well as Internet streaming in addition to cable television

~~~

WHEREAS; it is commonly referenced that the other Pubic Interest Non-commercial Television [29] is a reasonable basis for informing policy decisions esp. as regards sponsorship or underwriting policy and the FCC [30] has promulgated several Rules (Rule of 1984 [31] ) that represent current interpretation of law its rulings are the primary basis of this guidance. Also reviewed and acknowledged is credible policy commentary [32] on FCC rulings and plain language law summaries such as Federal Trade Commission Act [33] ,

NOW THEREFORE BE IT RESOLVED:

CACSCC acknowledges within this resolution that its role is established by CT Law, confirmed in its mission and actionable in its efforts to provide Shared Service opportunities like Insurance.

CACSCC affirms that guiding principals of meaningful Community Access remain: localism, diversity and noncommercial programming for individuals [34] to convey their message via mass media. [35] CACSCC finds that in current law commercial speech is not treated equal to individual speech. This should guide the development of Community Access Policy.

CACSCC affirms that local community access policies will rightfully vary based on town-specific conditions such as resources available to manage them, local experiences and P.E.G mission within the precepts of the guiding principles. Note: This is directly in response to Case 09_04: Commercial Use_SO

That the town-specific Community Access organization whose acts, or lack thereof; result in a Broadcast Insurance Claim will be liable for the associated insurance policy deductible of $5000.

That local policies need to be reviewed regularly to keep up with trends and provide clear public record of production responsibilities.

Government (and Education) Policy needs to be included in the Annual DPUC Report submitted by the access center inclusive of procedures for meeting capture unless filed seperately. Such policies can include text like "every effort will be made to cover meetings gavel-to-gavel within the technical constraints of the meeting room and resources." They include safeguards like there is no guarantee that out of the ordinary presentations can be captured effectively. Such presentations should be identified in advance to the committee leadership to determine if arrangements can be made to capture the presentation material.
It should also be clear in policies that scheduling for government and education is not subject to 13 week review for series programming which is a public access 1^st come 1^st serve rule per CT Law.
(modified in discussion 2.25.10)

That local access center practices should seek to serve a broad base of users providing support for self-service program development versus extensive long term support for select users.

That all policies should rightfully continue to include the program restriction ‘no commercialism’ and that this term be clarified with consideration the following

Any definition of Commercial Use for community access programs should recognizes that access centers provide resources that would otherwise cost producers money for the development and be distribution of programs to mass audiences; therefore, it does not require a direct exchange of money nor must it result in a profit to be classified as commercial.

Commercial productions include features traditionally found in advertising such as product placement, overlays, redirects to online marketing, endorsements and testimonials in which producer, host, or guest utilizes statements and/or support of outside individuals or organizations in order to increase a viewers interest in their product and/or services (even if sales are not directly referenced in the production).

Commercial productions can be partnered with auxiliary commercial enterprises such as a web site that charge for access, have secured passwords, include ads or sell products (including copies of programs produced for free at access facilities).

The term "endorsement" is associated with messages featuring public figures or celebrities, while the term "testimonial" refers to use of ordinary users of products or services. This support can take the form of verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization.FTC rules for non-fraudulent endorsements establish that they must reflect the honest opinions, findings, beliefs, or experience of the endorser; therefore, consideration of testimonials within production as not advertising because they are honest opinions, findings, beliefs, or experience is counterintuitive.

Access centers do not censor but they are obligated to provide non-commercial programming. Personal speech that uses information and persuasion seeking to modify attitudes is free speech. Informing with persuasion about products and services is advertising. The more an access production suggests use of products and services the more it is commercial speech vs. individual speech and not permissible.

Due to meeting time not being sufficient to adequately review, the followng porion of resolution was TABLED In Februray and the review and adoption concluded in April.

To ensure programs that include information about local business is permissible for broadcast local access boards can provide production guidelines related to content and interview techniques.

Examples of policy language here and as follows:

1. web sites references within programs are limited to non-commercial websites (government, non-profits, opinion blogs).

2. telephone numbers and email address are specific to program participation (ie.call-in). Credits are to thank participants and provide identification of producer responsible for content.

3. total time used to provide information about guests business in any program is 30 sec. This can include a company name, guest title and logo - no web site).

4. the size of overlays related to products & services can be no more than 15 % of safe area.

Always excluded examples can include

5. Commercial websites

6. Testimonials and Endorsements

7. Reference to sales or prices including ‘free’ which is a promotional price

Commercial use rules can be applied to all users or modifications can be made for non-profits or use by access center only. If Non-profits are allowed to provide any or all of the above without restriction sponsored supports would still be commercial (i.e. a % of proceeds go to a non-profit)

That any complaint that can be classified as a major violation based on policy in the public record result in immediate suspension with a reasonable opportunity for review and remediation because most programming of ideas & opinion is not time sensitive and the violation impact presents greater risk than delay of distribution when claims arise.

That locally appointed advisors are the 1^st line of support to town-specific access organizations in handling of complaints

That any town-specific access station that wants policy correspondence addressed to other than the general e-email address must provide e-mail and/or telephone contact information for the appropriate local contacts with the Annual Report filing, and update as needed.

That all town-specific policy and procedures be available in two formats 1) in brief version for at a glance program content & facility use guidance and 2) full version with forms, procedural details and standard form letter for notice to producers identified as in violation of procedures. All of theses documents should be available to the public via the internet inclusive of the 7TownTV.org. In Brief versions should be downloadable and between 2-4 pages.

That the community be made aware of digital content that can be sponsored and that consideration be given to creation of community panel including local advisor representation that works to ensure that programs selected represent the community and are schedule according to considerations like safe harbor

It should be noted that specifics to sponsorship and underwriting policy are not addresses in this resolution except to note that they are a subset of all policies that are not required to be adopted. If adopted they too are limited by non-commercial rules of use.

IN CONCLUSION

Proper application of policies and procedures enable local communities to fulfill the mission of democracy and protect free speech

MOTION BY:

Vice Chairman 2.25.10 , F. Foley 4.22.10

SECOND BY:

Committee Members 2.25.10, Vice Chairman 4.22.10

Adopted April 24, 2010

Instruction: Click on number to return to body of text.

[1] CACSCC – Cable Advisory Council South Central CT

[2] Sec. 16-331a (j) The advisory council shall review all community access programming of a company or organization within the franchise area which programming has been the subject of a complaint.

[3] THE CABLE COMMUNICATIONS ACT OF 1984 PUBLIC LAW 98-549 - October 30, 1984 (98 STAT.2780) Amendment of Communications Act of 1934 - 47.USC 531 CABLE CHANNELS FOR PUBLIC, EDUCATIONAL, OR GOVERNMENTAL USE

[4] Id. 47.USC 532 "(6) Any channel capacity which has been designated for public, educational, or governmental use may not be considered as designated under this section for commercial use

[5] CACSCC Mission Secure reasonable Community Access (P.E.G.: Public, Education, government Access) resources.

[6] Insurance 2010_CACSCC_MCN641484.pdf Excludes coverage for any breach of contract.

[7] Several references to policy exceptions due to non-commercial nature of community access

[8] Annual reports are filed with DPUC each February with copies to CACSCC

[9] the seven towns (Branford, East Haven, North Branford, North Haven, Wallingford, Guilford and Madison)

[10] CACSCC documented policy variations and published comparison here

[11] UR:PAP Undocketted Response to Inquiry from Producers of Healing Outside the box

[12] DPUC Dept. of Public Utilities Control

[13] …each station determines its policies regarding programming policies in accordance with the Department’s statutes .. within their authority to suspend programming when a violation has occurred.

[14] Neither the statute, nor the WPAA and EHT policies directly define “commercial or profit-making.”

[15] Conn. Gen. Stat. §16-333a (o) .. provides in part that the access organization consult with its advisory board to formulate access programming policy.

[16] DPUC Docket No. 99-10-05 was source of change and CACSCC under leadership of W. Mann made this advisory ruling targeting a change date as within 2 years.

[17] Regional Community Access Channel available to producers as a facility and franchise-wide distribution center

[18] DPUC Docket No. 99-10-05 – Franchise Agreement: Section Summary 1A the Department finds that the public interest requires the Company to develop a plan to oversee the provision of meaningful community access and to ensure the statutory and regulatory compliance of the seven community access groups operating in this franchise area.

[19] Comcast became the franchise in DPUC Docket 02-03-10 assuming all responsibilities of the contract previously held by AT&T until 12/2002 when Comcast applied for cable certification in DPUC Docket 07-12-03.

[20] DPUC Docket No. 99-10-05 – Franchise Agreement: Community access is defined as non-commercial programming produced or sponsored by members of the community and made available to all subscribers in a cable operator’s service area as part of the operator’s basic service tier.

[21] Conn. Gen. Stat. §Sec. 16-331h. Certified competitive video service community access programming.

[22] Correspondence about Role of CACSCC suggesting there is no role

[23] Needs Assessment is feature of franchise renewal that identifies gaps, risks and recommends remediation

[24] DPUC Docket 07-12-03 obligated per Conn. Gen. Stat. §Sec. 16-331s. cable company to these portions of the cable provider regulations subsections (b) to (i), inclusive, and subsections (k), (l) and (n) of section 16-331a and any regulations pursuant thereto, and subsection (c) of section 16-333 and any regulations pursuant thereto.

[25] commercial spots can be seamlessly transferred (sometimes with little or no editing) to serve as underwriting spots in a way that seems to blur in the public mind the distinction between commercials and nonpromotional underwriting acknowledgement. You Said What? The Perils of Content-Based Regulation of Public Broadcast Underwriting Acknowledgments Andrew D. Cotlar*

[26] Websites are unlike other forms of advertising in a few key areas: readily accessible to people all over the country and the world, are flexible and easy to change, they permit inclusion of a volume of information that it would be impractical to include in more traditional advertising or marketing media. i.e client lists, resumes or bios, detailed descriptions , and testimonials. Not all client testimonials are acceptable forms of advertising, however. Some client endorsements or testimonials containing truthful information may be included in a website with the client's consent. For example, “soft endorsements,” touting a lawyer's responsiveness, diligence, and efficiency, are permissible. However, the use of actors to pose as clients, the use of endorsements relating to a specific result or outcome in a case, or a comparison of the lawyer's services to others may violate the rules. A good rule of thumb: a testimonial cannot say anything the guest could not say directly.

[27] Public Access media transfer site for distribution via Internet download http://www.pegmedia.org/

[28] ATT Product available in select communities based on PA Act 07-253

[29] Public Broadcasting System Mission: To inform, inspire and educate.

[30] FCC Federal Communications Commission

[31] FCC Rules of 84

[32] FCC_You Said What? The Perils of Content-Based Regulation of Public Broadcast Underwriting Acknowledgments Andrew D. Cotlar*

[33] The statute also prohibits advertising of cigarettes and little cigars on any medium of electronic communications subject to FCC inclusive of de radio, and broadcast, cable, and satellite television.

[34] Commercial and Polical speech are not treated the same within First Amendment as individual rights

[35] New Media in Old Bottles? Barron’s Contextual First Amendment and Copyright in the Digital Age Neil Weinstock Netanel concludes that traditional mass media play a vital, ongoing First Amendment role and, accordingly, that we should aim to preserve the place and vitality of the mass media even as we insist on giving considerable free play to peer expression.