CABLE TELEVISION ADVISORY COMMITTEE

Transcription

1 CABLE TELEVISION ADVISORY COMMITTEE Mission: The mission of the Cable TV Advisory Committee shall be to act in accordance with the guidelines outlined in the City of Leavenworth Governmental Access Channel Capacity Guidelines for Utilization. Composition: The Cable Television Advisory Committee shall consist of 9 members, which shall be appointed by the Mayor from the following entities: Term School District No each Indefinite Term Leavenworth County Staff 1 each 3 years Leavenworth City Commission 1 each 3 years Leavenworth Library Staff 1 each 3 years Chamber of Commerce 1 each 3 years KCKCC Staff 1 each 3 years Community at Large 1 each 3 years Leavenworth Main Street 1 each 3 years Leavenworth Development Corp. 1 each 3 years Term of Service: The School District representative shall always be the staff member serving as Communications Director. Of the other members of the committee, three members shall be appointed for a term of two years and three members shall be appointed for a term of three years. After the initial appointments, all future appointments shall be for a term of three years. Compensation: The members of the Cable Television Advisory Committee shall serve without pay. Removal of Members: Each member of the Cable Television Advisory Committee shall be removable for cause by the recorded vote of a majority of the members of the governing body after a public hearing. Any member of the committee failing to attend four successive regular meetings without cause, acceptable and approved by the remaining committee members, shall be thereby automatically removed from the committee and the vacancy shall be re appointed from the designated agency by the Mayor. Organization: The Mayor shall appoint the initial chairperson of the Cable Television Advisory Committee, who shall serve in this capacity for a period of one year. Thereafter, the committee shall annually elect one of its members to act as chairperson. The Assistant City Manager, or his/her designated representative, shall attend all committee meetings in an advisory capacity and shall keep and publish minutes of the meetings. Meeting Frequency: The Cable Television Advisory Committee shall meet at least quarterly at a time and place which is mutually agreeable to the members. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 1

2 Fourth Amended CITY OF LEAVENWORTH GOVERNMENTAL ACCESS CHANNEL CAPACITY GUIDELINES FOR UTILIZATION I. Introduction As part of its administration of The General Cable Television Regulations, Ordinance No. 7291, and the Cable Franchise Ordinance No. 7292, the City of Leavenworth is hereby establishing guidelines for the use of channel capacity on the cable system dedicated by the Cable Franchise Grantee for governmental purposes. II. Background Under Part 4, Section 8 of the General Cable Television Regulations, the Cable Franchise Grantee is required to supply channel capacity for access to its cable system for governmental purposes. Initial governmental access is to be provided over one channel. These governmental access guidelines establish rules, procedures and requirements to determine eligibility to program the capacity and the acceptability of programming material for governmental access and otherwise set forth operating policies by which the City will make use of governmental access capacity. III. Purpose The purpose of governmental access hereunder is to provide to political subdivisions located in, or jurisdictionally part, of the City of Leavenworth, facilities and services that may be provided by governmental access channel capacity on the cable television system for intergovernmental and intragovermental purposes, and to provide a public service using the cable television system as an outlet for governmental information and programming. The City has established a Cable Television Advisory Committee to advise the City Commission on issues regarding cable television services that relate to governmental access. IV. Eligible Governmental, Quasi Governmental, and Other Entities Upon application to the City, governmental access information or programming may be inserted over the cable system's governmental access channel capacity by an eligible governmental entity. The term "eligible entity" means the following: the Governing Body, executive personnel and administrative personnel of the City of Leavenworth; the Library Board of the Leavenworth Public Library; The Performing Arts Center; the Board of Education and the School Superintendent of Unified School District 453; the Board of County Commissioners; The Leavenworth County Port Authority; the Leavenworth County Development Corporation; The Leavenworth/Lansing Chamber of Commerce; Leavenworth Main Street, executive personnel and administrative personnel of Leavenworth County; the State of Kansas to the extent related directly or substantially to the interests of the citizens of the City of Leavenworth; Fort Leavenworth, the VA Center, the U.S. Penitentiary, and the U.S. Post Office. V. Policy Guidelines C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 2

3 A.) Governmental access is intended both for in service use by and between eligible government entities and as a public service to the citizens of Leavenworth. B.) The Assistant City Manager is the City's designee responsible for coordinating the operation of governmental access activities. The Public Information Officer shall act on behalf of the Assistant City Manager in matters related to the Government Access Channel. C.) The Cable TV Advisory Committee shall provide the City Commission and City Manager with advice concerning governmental issues that are relevant to Leavenworth and the development and procurement of information, information services and programming responsive to those issues. The Cable TV Advisory Committee shall regularly consult with eligible governmental entities to identify relevant governmental issues. The Cable TV Advisory Committee from timeto time may seek comment from members of the Leavenworth community for further input on relevant issues and information, information services and programming responsive to those issues D.) The Assistant City Manager/Public Information Officer shall be the primary interface with the cable television franchisee for the purpose of scheduling franchisee provided resources and facilities for the production and cablecast of governmental access programming. E.) The Assistant City Manager or the Public Information Officer, in consultation with the Cable TV Advisory Committee, shall be responsible for accepting programming information and materials from eligible governmental entities and to assist in and coordinate the production of governmental access programming for such entities as they may require, subject to available facilities, funds and personnel. Cost based, including for staff time, production fees may be assessed to governmental and quasi governmental entities requiring production assistance. Such fees shall be determined from time to time by the Governing Body, at the advice of the Assistant City Manager/Public Information Officer in consultation with the Cable TV Advisory Committee. F.) The Assistant City Manager's Office, in conjunction with the Cable TV Advisory Committee, may schedule, produce, and distribute a program schedule to community media, city staff and others upon request. G.) All material or programming cablecast on governmental access capacity is subject to the review and approval of the Assistant City Manager or the Public Information Officer, who shall make such programming determinations in full consultation with the Cable TV Advisory Committee and consistent with these guidelines. The Governing Body has ultimate authority with respect to programming and material transmitted over the governmental access capacity. H.) The Cable TV Advisory Committee shall be responsible for reviewing accessibility options for the deaf and hard of hearing community. VI. Access Policy A.) Governmental access channel capacity is available only to eligible governmental and quasigovernmental entities, defined herein. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 3

4 B.) Only programming or information of a bona fide governmental interest submitted by an eligible governmental entity shall be cablecast. 1.) The term "programming or information of a bona fide governmental interest" means video, audio, data and other intelligence which consists of or directly relates to: a.) the administration of government business; b.) in service training or updating of public administration skills and techniques directly relating to enhancing the administration of government business; c.) government business itself; d.) programs, schedules, procedures or any other techniques that directly or indirectly assist the public in Leavenworth to receive or utilize government services. 2.) Programming or information of a bona fide governmental interest could be: a.) live or delayed (taped) meetings of the City Commission of the City of Leavenworth, of the Board of Education of Unified School District 453, of the Library Board of the Leavenworth Public Library, of the Leavenworth Planning Commission, and of other City boards and commissions; b.) live or delayed (taped) public meetings and hearings related to the operation of the City, County or State government as may be of interest to the Citizens of Leavenworth; c.) information regarding the responsibilities, operations and services offered by various City, County or State departments that may be of interest to the citizens of Leavenworth, such as, i.) public health and safety information or programs from the Leavenworth Fire Department, such as, fire prevention techniques, how to summon help in an emergency, first aid and evacuation procedures; ii.) public health and safety information or programs from the Leavenworth Police Department or the Leavenworth County Sheriff s Department, such as, how to "burglarproof your home and automobile, how to summon help, crime watch information and fax broadcast numbers; iii.) listings of employment opportunities listings posted by applicable City, County and State agencies; iv.) listings of business hours of various government departments; C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 4

5 v.) descriptions and motion pictures of animals available for adoption from the Leavenworth animal shelter; vi.) data, teletext, video and/or audio transmissions intended for use by individual departments of the City; vii.) various announcements and notices of services and functions. d.) Community events, such as parades, conferences, or ceremonies, which in the judgment of the Cable Television Advisory Committee are of significant value to the community. e.) Government access channel capacity may not be leased to third parties for uses unrelated to the provision of governmental access pursuant to these guidelines. f.) No religious programming shall be accepted for governmental access. "Religious programming" means programming or information that taken as a whole promotes or inhibits religion, irrespective of whether one or more or all religions. g.) No "political programming" shall be accepted for governmental access. Nor may governmental access channel capacity be used to influence the election of any candidate to state or local office pursuant to Kansas Statutes Annotated a. "Political programming" is defined as that programming which, if inserted on the governmental access channel capacity, would constitute a use by a legally qualified candidate or his or her supporters (authorized or unauthorized) that would give rise to requirements by a cable operator, if such programming were to have been inserted on a cable channel subject to the cable operator's control, to provide equal opportunities and quasi equal opportunities to other such candidates for the same office or their supporters (authorized or unauthorized) under Federal Communications Commission CFCC") cable television regulations, e.g., 47 C.F.R. 76.3(q) and et seq., and related FCC policies, rules and doctrines, including the "personal attack rule." For these guidelines, the following are considered news events and are not "political programming:" meetings of and hearings before the City Council, the Board of Education of Unified School District 453, and City boards and commissions; debates among candidates for election to a particular office if such debate is conducted and produced by a neutral third party, each candidate is asked identical questions by a neutral moderator and is given time to respond, and all candidates for such election are invited to attend such debate. Attachment 1 hereto is a description of "political programming." h.) No programming shall be accepted for governmental access if it contains obscene material, sexually explicit conduct or material soliciting or promoting unlawful conduct under Section 10(c) of the Cable Television Consumer C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 5

6 Protection and Competition Act of 1992 ("Cable Act") as implemented by regulations of the FCC. i.) No programming shall be accepted if it contains information constituting a "lottery" as defined in 18 U.S.C and FCC regulation 47 C.F.R Attachment 2 hereto is a description of information constituting a "lottery." j.) No programming shall be accepted if it contains commercial advertisements or solicitations for financial support for any group, organization or individual other than as expressly contemplated by these guidelines and with the express consent of the Assistant City Manager in consultation with the Cable TV Advisory Committee. k.) No programming shall be accepted if it is libelous, slanderous or defamatory. VII. Procedures A.) The Assistant City Manager, as assisted by the Public Information Officer, shall be responsible for the physical operation of the governmental access channel capacity. B.) Modes of cablecast Governmental access channel capacity may utilize seven cablecast modes: 1.) Live Live coverage may be provided, subject to the preemption for any material that does not comply with these guidelines. 2.) Remote Utilizing remote video production facilities for on location tape delayed cablecasts. 3.) Tape Delayed Events or presentations may be videotaped for cablecast at a later time. Videotapes of live cablecasts may be replayed. 4.) Locally Produced Programs Original programs that are bona fide governmental programming may be produced by eligible governmental entities, including production and production assistance by the Cable TV Advisory Committee on behalf of such eligible governmental entities. Any copyrights to locally produced bona fide governmental programming shall belong to the eligible governmental entity producing such program. If such eligible governmental entity is not organized and authorized to own such a copyright, the copyright shall belong to the City or the County or the State with direct jurisdiction over the eligible governmental entity. 5.) External Programs Bona fide governmental programming may be acquired or borrowed by eligible governmental entities for governmental access. The eligible governmental entity shall be responsible for securing all copyright authorizations required for externally produced programs. The Assistant City Manager/Public Information Officer shall advise the Cable TV Advisory Committee of any and all such programming submitted to his office in sufficient time before scheduling to investigate and otherwise assure that appropriate copyright authorization has been issued. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 6

7 6.) Alphanumeric Message Board During non cablecast governmental access hours, a governmental bulletin board may be maintained to display messages of interest, such as school events and schedules that relate to bona fide governmental programming. 7.) Data Computer applications may be integrated over the governmental access capacity as technology permits. C.) Program Log A daily log will be maintained of all programming cablecast that day. VIII. Editing Policy A.) Any programming submitted by an eligible governmental entity for governmental access may be previewed by the Cable TV Advisory Committee or Assistant City Manager/Public Information Officer for acceptance as programming of a bona fide governmental interest. The Cable TV Advisory Committee or Assistant City Manager may edit such programming to conform to these guidelines or reject the programming. B.) In the case of live programming, scripts or coverage concepts may be reviewed by the Cable TV Advisory Committee or Assistant City Manager/Public Information Officer in advance for acceptance as programming of a bona fide governmental interest. The Cable TV Advisory Committee may require modifications to conform to these guidelines or reject the programming. C.) Bona fide governmental access programming may be edited or modified to conform to scheduling and time availability. However, every effort shall be made to cablecast meetings and hearings of the City Commission and of the Board of Education of Unified School District 453, and other public meetings and hearings in their entirety. D.) The preview, review and editing process shall be under operational control of the Assistant City Manager/ Public Information Officer in conjunction with the Cable TV Advisory Committee. E.) Any programming submitted by an eligible governmental entity for governmental access that is not accepted will be returned. Programming accepted for governmental access will be retained, including tapes of live programming, for the duration of the scheduled run of the programming, including repeat exhibitions, and for any such period of time as may be applicable under the City's policies for programming return, receipt and record retention. Subject to copyright and licensing considerations, programming shall be available to the public for copying one week after the last scheduled run. F.) Alphanumeric Bulletin Board Messages programmed into the bulletin board shall be edited to provide clarity and to provide maximum use of the memory bank currently available. Message content generally will not be edited, but will not be inserted if inconsistent with these guidelines. IX. Programming Schedules C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 7

8 A.) The Assistant City Manager's Office, in consultation with the Cable TV Advisory Committee, is responsible for scheduling. The day to day management of schedules shall be through the Assistant City Manager's office. The program schedule, once publicized, generally will not be deviated from or added to except in the event of an emergency, as a result of technical difficulties or unavailability of the scheduled programming. B.) Programming of a bona fide governmental interest will be scheduled according to the following priorities and guidelines: 1.) Announcements concerning emergencies affecting health or safety or exigent circumstances may preempt at any time. 2.) Special meetings of the City Commission and committees thereof 3.) Regular meetings of the City Commission and committees thereof 4.) Hearings before the City Commission and committees thereof 5.) Special meetings of the Leavenworth Planning Commission 6.) Regular meetings of the Leavenworth Planning Commission 7.) Hearings before the Leavenworth Planning Commission 8.) Special meetings of the Board of Education of Unified School District 453 and committees thereof 9.) Regular meetings of the Board of Education of Unified School District 453 and committees thereof 10.) Hearings before the Board of Education of Unified School District 453 and committees thereof 11.) Other public meetings and hearings 12.) In service use of government access channel capacity 13.) Information programming, news, public interest 14.) Database programming, such as, employment bank listings 15.) Repeats of public meetings and hearings for time diversity 16.) Alphanumeric bulletin board messages C.) Governmental access programming of live scripts or concepts for such live programming must be submitted at least four weeks in advance of the intended cablecast date to allow for C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 8

9 scheduling, preparation, production, if any, and evaluation for consistency with these guidelines. Emergency programming is not subject to this requirement. D.) "Bulletin Board" messages must be submitted to the Assistant City Manager/Public Information Officer at least 72 hours prior to the intended insertion date except for special public announcements (such as ball field closings). E.) It is the City's policy to cablecast all programming of a bona fide governmental interest submitted by an eligible governmental entity, subject to the priorities and guidelines herein. Scheduling requirements may, from time to time, preclude available cablecast time for all such programming for its intended cablecast date. The Cable TV Advisory Committee shall use its reasonable efforts to accommodate such programming and entity by coordinating with other such entities to resolve potential scheduling conflicts. X. Endorsements The endorsement of specific brands of consumer products is prohibited. No advertising, paid or unpaid, shall be accepted for governmental access. Programming of a bona fide governmental interest produced by a commercial organization that contains the name and logo of the organization is not considered advertising or endorsements under these guidelines. An example is a fire prevention tape produced by a smoke alarm company offered for access by the Leavenworth Fire Department. XI. Support for Governmental Access Individuals or organizations that provide contributions to the City or to a municipal instrumentality of the City that is exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code to support governmental access or specific programming of a bona fide governmental interest may be identified by name and, if a business or organization, the display of their business or organization logo and tagline, consistent with Section 399B of the Communications Act of 1934, as amended, and FCC regulations (47 C.F.R (d)) and policies and guidelines governing the noncommercial, educational broadcast services with respect to so called "underwriting announcements." There shall be a receipt mechanism for any such contribution. Such underwriting announcements or acknowledgments shall be for identification purposes only and shall not promote the contributor's products, services or company. Such announcements may not contain comparative or qualitative descriptions, price information, calls to action or inducements to buy, sell, rent or lease. Attachment 3 contains additional guidance on what constitutes permissible parameters of underwriting announcements. XII. Promotions XIII. Resources Promotional announcements concerning upcoming programming may be cablecast. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 9

10 XIV. Legal A.) Equipment and Facilities Any and all equipment or facilities acquired by or made available to the City for governmental access programming will be under the direct supervision of the Assistant City Manager, as assisted by the Public Information Officer. B.) Videotape Copies Subject to copyright licensing requirements, copies of any available City of Leavenworth programs, including City Commission meetings, shall be provided to authorized City employees or departments for official use only, free of charge, upon request. Blank tapes of equal type and capacity must be exchanged. Copies of City Commission and other public meetings shall be provided to any citizen at cost (to include administrative and overhead) in accordance with the provisions of Appendix F (Schedule of Fees and Charges) of the Leavenworth Municipal Code. The Assistant City Manager and City Clerk's Office shall prepare and maintain a price list for copying and copy/searching videotape records. This price list shall be reviewed and approved by the Governing Body. C.) Videotape review Videotapes of meetings and hearings may be reviewed by the public. Since a means to review such tapes is not currently available in City Hall, and since master archive tapes cannot be removed from the City Clerk's office, interested parties must use the procedures in paragraph B.) above to obtain review tapes of proceedings. A.) Copyright and Trademark/Service Mark 1.) All programming accepted for governmental access cablecasting shall be cleared for copyright. The eligible governmental entity submitting the programming must have obtained and provided to the Assistant City Manager a specific authorization from the copyright holder of the programming authorizing the "City of Leavenworth" to perform, edit and make ephemeral recordings of the work' consistent with these guidelines. In the case of live programming or taped programming produced for access hereunder that is not a public proceeding, permission or releases must be obtained from persons depicted therein to use their likenesses, including printed, recorded and photographed material. 2.) Any trademark or service mark, depicted or audible, in any programming accepted for governmental access shall be cleared in the same manner as for copyright. B.) Errors and Omissions: 1.) Eligible governmental entities shall represent and warrant to the City that they have all necessary copyright, trademark, service mark and likeness (i.e., invasion of privacy and publicity) permissions and authorizations for the City to cablecast the submitted programming consistent with these guidelines and that such information or programming is not libelous, slanderous or defamatory and is otherwise consistent with these guidelines, including particularly, Section "VI. Access Policy". Such eligible governmental entities shall indemnify and defend the City against damages and loss, including reasonable attorney's fees, for any claims arising out of such representations and warranties. Such indemnification shall also extend to the cable operator to the C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 10

11 C.) Archives extent it is not exempt from liability under the Cable Act or other applicable law. A copy of the certificate of copyright authorization is at Attachment 4. 2.) The City may obtain appropriate "broadcasters' liability" insurance, in which case it may name such eligible governmental entities as additional insureds and assess such entities, pro rata, the premium amount of any such insurance. Alternatively, any such eligible governmental entity that has or obtains such insurance shall name the City as an additional insured with respect to governmental access programming cablecast pursuant to these guidelines. The cable operator may also be named an additional insured in the City's discretion. It is the policy of the City to maintain on video tape archives of meetings of and hearings before the City Commission and the Leavenworth Planning Commission (when the Planning Commission proceedings are taped) pursuant to City record retention policy. Recording and record retention policies for all other meetings of and hearings before other eligible governmental entities shall be arranged by such entity in a manner acceptable to the City. XV. Amendment and Repeal The City Commission may from time to time amend or repeal these guidelines as it deems fit. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 11

12 ATTACHMENT 1 Description of "Political Programming" Uses GOVERNMENTAL ACCESS CHANNEL CAPACITY GUIDELINES FOR UTILIZATION: IMPLEMENTATION IDENTIFYING POLITICAL PROGRAMMING I. Introduction The City of Leavenworth ("City") has developed Governmental Access Channel Capacity Guidelines for Utilization ("Governmental Access Guidelines") for the use of governmental access channel capacity on the cable television system of its franchisee, Time Warner Cable ("Access Guidelines"). Under Section VI.G., "Access Policy," of each of the Access Guidelines, no political programming may be accepted for either educational access or for governmental access. In addition, under Section VI. of the Governmental Access Guidelines, meetings of and hearings before the City Commission, the Board of Education of Unified School District 453, and City boards and commissions are not "political programming" and debates where all candidates for the same office are invited to participate are not "political programming." Such meetings, hearings and debates are considered bona fide news events. "Political programming" is defined as a use of the channel capacity by a legally qualified candidate or his or her supporters (authorized or unauthorized) that would give rise to requirements by a cable operator to provide equal opportunities and quasi equal opportunities to other such candidates for the same office or their supporters (authorized or unauthorized) under Federal Communications Commission CFCC") cable television regulation 47 C.F.R et seq. and related FCC policies, rules and doctrines, including the "personal attack rule." Nor may access channel capacity be used to influence the election of any candidate to state or local office pursuant to KSA a. Generally speaking, following the FCC's political programming regulations in conjunction with following the applicable Access Guidelines will result in compliance with KSA a. Where there are differences, they are discussed below. II. FCC "Political Programming" The FCC's political cablecasting regulations and related policies, rules and doctrines, including the "personal attack rule," impose special obligations on cable operators that accept "political" programming. The regulations are codified at 47 C.F.R 76.3(q) and et Seq. The regulations do not apply to educational access channels or to governmental access channels. However, the regulations have been incorporated into the Access Guidelines and are relevant in that regard. For purposes of using this memorandum to evaluate whether a program is "political programming," there must first be a "legally qualified candidate." If so, such a candidate must "use" the system or non candidate supporters (authorized or unauthorized) must "use" the system. If such a "use" would occur, then the programming is political and may not be accepted for cablecast under the applicable Access Guidelines. A "use" in the context of this C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 12

13 memorandum means an appearance by a legally qualified candidate or his supporters that would place the cable system in the position of potentially having to extend equal opportunities or comparable time or to provide notice under the FCC's political cablecasting regulations, policies, and doctrines, including the personal attack rule," which are discussed below. The following discussion in this memorandum must be applied analogously, since the FCC's regulations and related rules, policies and doctrines do not apply to access channel capacity. A. Equal Opportunities If a "legally qualified candidate" makes "use" of the cablecasting channel, the cable operator must provide "equal opportunities" to all legally qualified candidates for the same office. "Equal opportunities" requires that any other legally qualified candidate for the same office who has made a timely request (within 7 days of the first candidate's "use") be provided the same amount, rate and class of time at similar times of the day to reach comparable audiences as was provided to the candidate whose use triggered the equal opportunities request. Equal opportunities, accordingly, must be provided only when there has been a prior use by a legally qualified candidate. [Footnote: Cable operators must also provide legally qualified candidates the lowest unit charge in their advertising rates during the 45 days before a primary or primary runoff (or nominating caucus) and 60 days before a general or special election. The rate may not exceed the lowest unit charge for the same class and amount of time for the same period that the cable system provides to its most favored advertisers. Since the Access Guidelines do not permit advertising or advertising supported programming, this aspect of the FCC s regulations are not discussed further.] B. Political Programming Use of the access capacity by legally qualified candidates is political programming. Political programming may not be accepted for cablecasting under the Access Guidelines. The guidelines do not contemplate providing equal opportunities. In order to preclude political programming the guidelines incorporate the FCC's regulations to identify such programming. The possibility for political programming exists only during the time a candidate becomes "legally qualified" and the election ends. 1. Legally Qualified Candidate The FCC's political cablecasting rules, 47 C.F.R et seq., apply to "legally qualified candidates" to federal, state and local offices for whom the citizens in the location of the cable system may vote. A candidate for mayor in City A is not a legally qualified candidate with respect to City B where the cable system is located (1984 Primer, Q.25). FCC rule 76.3(q) defines a "legally qualified candidate." President and Vice Presidential candidates are subject to special requirements, noted below. With respect to conventions and caucuses other than for President or Vice President, candidates for nomination, in order to be legally qualified candidates, must have: C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 13

14 Publicly announced an intention to run for nomination; Be eligible to hold the office sought; and Made a substantial showing of a bona fide candidacy, such as, establishing a campaign headquarters, making speeches and other activities commonly associated with a campaign. In addition to publicly announcing and being qualified to hold the office, candidates for nomination for President and Vice President will be considered "legally qualified" in those states where they or their proposed delegates have qualified for a ballot position or have made a substantial showing of bona fide candidacy. Once qualified in 10 or more states (including the District of Columbia), Presidential and Vice Presidential candidates will be considered "legally qualified" in all states. With respect to all candidates for primaries, special elections or general elections (including President and Vice President), in order to be legally qualified they must: Be qualified under the applicable local, state or federal law to hold the office sought and have publicly announced an intention to run for nomination or election office and either have qualified for a place on the ballot; or Have publicly committed himself or herself to a writ in or other form of campaign (if applicable law permits a person to be voted in by such a method) and have made a substantial showing of a bona fide candidacy for nomination or office. A "substantial showing" of a bona fide candidacy for primaries and elections is evidence that "the candidate has engaged to a substantial degree in activities commonly associated with political campaigning," such as filing necessary papers required by state law to qualify for a place on the ballot, making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee and establishing campaign headquarters. Except for Presidential and Vice Presidential candidates, no candidate for nomination by convention or caucus will be considered "legally qualified' earlier than 90 days before the convention or caucus begins. Some not so obvious interpretations: Absent and subject to judicial determination, rulings that candidates are or are not legally qualified rendered by a State Attorney General or another State official who has authority to decide a candidate's legal qualifications control (1984 Primer, Q. 17). Rivals in recall ballots where an incumbent elected official is subject to recall, the incumbent and the successor candidates are all "legally qualified candidates" (1984 Primer, Q. 26). C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 14

15 Proposed conventional delegates are not legally qualified candidates (where their names do not appear on the primary ballot) (1984 Primer, Q. 20). If State law permits persons to be voted for by the electorate irrespective of whether they have gone through the procedures required for getting their names placed on the ballot itself, the announcement of a person's candidacy, if bona fide, is sufficient for that person to be a "legally qualified candidate" under the FCC's rules (Judy H. Hersher, Esq., DA [June 24, 1992]). A write in candidate is a "legally qualified candidate" if he or she has publicly committed himself or herself to seek election by the write in method (1984 Primer, Q. 19). A person who meets the definition of a candidate as given in the Federal Election Campaign Act CFECA"), Chapter 14, is not necessarily a "legally qualified candidate" for purposes of the FCC's regulations ( 1984 Primer, Q.23 ). 2. "Use" of the Cable Facilities a. "Use" by Legally Qualified Candidates A legally qualified candidate must also make "use" of the cablecasting facilities in order to give rise to equal opportunities. Except as noted below, the FCC's political cablecasting rules apply to any legally qualified candidate's appearance (voice, picture or other identifiable image) on a program or advertisement (including certain Public Service Announcements) that is controlled, approved, consented to or sponsored by the candidate (or the candidate's authorized committee). Except for so called "fleeting appearances" (face in a crowd), any such appearance (picture or voice) after the candidate becomes "legally qualified", any voluntary appearance, even as a performer, celebrity, system employee, voice over, or even a brief appearance on a variety program to "take a bow", is a "use." An appearance by a candidate after becoming legally qualified will not constitute a "use" where there such appearance occurs under the following circumstances: Bona Fide News Programs, Specifically: bona fide newscasts (nightly news, "Today" and "60 Minutes" type programs [Not the "Tonight" show because that is not a news program]); bona fide news interviews ("Larry King Live", local "Issues and Answers," "Meet the Press" and "Later with Bob Costas" type programs); bona fide news documentary if the candidate's appearance is "incidental" to the subject(s) covered (such as a report on "Television and Politics"); or C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 15

16 on the spot coverage of bona fide news events (including political conventions and cable sponsored debates). In its rulings, the FCC generally recognizes as exempt those news programs where: (1) the program is regularly scheduled; (2) the program was not launched shortly before the race; (3) the cablecaster produces or controls the program; and (4) the cablecaster's decisions on the format, topics, content and participants are based on good faith journalistic judgments as to newsworthiness rather than on intentions to advance the candidacy of a particular person. Appearances Recorded Before, But Cablecast After a Candidate Becomes "Legally Qualified" If a candidate appears in an independently sponsored public service announcement CPSA"), advertisement or program recorded prior to becoming legally qualified, that appearance will not be a political "use," even if subsequently replayed after the candidate becomes legally qualified. Under this exemption, a public official's appearance in a PSA recorded before, but actually cablecast after, the person becomes a legally qualified candidate would not be a "use." Under this approach, the FCC recognizes that while a person may have "voluntarily" appeared in an independently sponsored announcement or program before becoming a legally qualified candidate, he or she has no "control" over when or where the material is subsequently cablecast. The FCC, in that regard, has overruled previous decisions finding that the broadcast of Ronald Reagan movies during applicable campaign periods would be a "use." On the other hand, if a candidate voluntarily appears on a live PSA or entertainment program during the applicable campaign period (or a taped appearance made) after becoming legally qualified, that appearance will be a "use." By the same token, if an appearance by a person replays after the person has become a legally qualified candidate, that appearance will constitute a "use" only if then authorized by the candidate. Such appearances will not be "uses" creating equal opportunity obligations for the system unless the legally qualified candidate (or his or her campaign committee) controlled, approved or sponsored the subsequent appearance. Similarly, depictions of the candidate (such as by supporters or independent political committees) would not constitute a use if the candidate (or his or her campaign committee) did not authorize the use of the material by the committee. However, such depictions would likely give rise to requirements in the context of non candidate political programming, supporters and spokespersons, discussed below. Some examples of "uses" include: C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 16

17 A non candidate reads a political script while the candidate is shown either on silent film or by a photograph over the screen. A "use" has occurred if the candidate or his or her campaign committee controlled, approved or sponsored the appearance. Thus if the candidate's photograph appears in an unauthorized, independently sponsored ad, it is not a "use" (Political Programming Policies, 7 FCC Rcd 678, 685 [1991]). A booth announcer supplies the audio portion of the programming for station identification announcements. The announcer is always "off camera" and never identifies himself. He becomes a "legally qualified candidate" for City Council. Do his announcements thereafter create a use? As long as the announcer' s voice is not well known or familiar to listeners, the announcer's voice overs would not constitute a "use." However, if the announcer is identified by name or his or her voice is identifiable due to listener familiarity, the announcer's appearance would constitute a "use." The cable operator's reasonable good faith judgment controls as to whether the announcer's voice is in fact so well known that it is identifiable to the general public. A candidate newscasters' on air appearance in a television newscast is a "use" and is not a subject to the bona fide news exemption (Political Programming Policies, 7 FCC Rcd 678, [1991]). In order not to create equal opportunities requirements, the cable system must remove the employee from the air for the duration of his or her candidacy. A PSA was taped featuring a singing group of about 100 people, many of whom were well known celebrities in various fields. No one's name was mentioned nor were any voices separately identifiable. One was a legally qualified candidate who was visible on two video shots both of which were of a few seconds duration. Did the PSAs constitute a "use"? No, since the duration of the shots was too fleeting and the camera range too distant for the candidate to be readily identifiable. Generally, if the appearance is less than 2 to 3 seconds' duration it will come within the "fleeting use" exception. Interview programs are not bona fide news interview programs and therefore exempt where the candidate controls the format and the content. For example, a "Governor's Forum" program where the Governor was a legally qualified candidate sat in his office and answered questions submitted by members of the public. Questions either were written directly to the Governor's office or telephoned to the stations [cable systems] participating in the program. Questions written to the Governor's office were selected by his staff and after the Governor recorded his answers, they were forwarded to the stations [systems] for broadcast [cablecast] (1984 Primer, Q.44). A one time "Special" interview with a candidate for reelection to Congress about his experiences as a new Congressman was not a bona fide news C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 17

18 interview program because it was not regularly scheduled, even though the station [system] initiated, controlled and produced the program (1984 Primer, Q. 44). b. Non Candidate Political Programming: "Uses" by Supporters and Spokespersons Under the FCC's so called Zapple Doctrine (2), if the system makes time available during an election campaign to a legally qualified candidate's supporters, including individuals, groups or organizations (such as independent political action committees or PACs) who urge the candidate's election or discuss campaign issues or criticize an opponent, the cable system must afford comparable time to an authorized spokesperson of that opposing candidate (but not to that candidate, himself or herself). The Zapple Doctrine is a form of quasiequal opportunities requirement that the FCC imposes outside of its codified regulations. (2) Nicholas Zapple, 23 'F.C.C.2d 707 (1970). The Zapple Doctrine has several facets: The candidate must not have voluntarily appeared (otherwise a use" would have occurred giving rise to equal opportunities in the ordinary course). The time must 'have been used to either (1) urge the election of a "legally qualified candidate," (2) discuss campaign issues or (3) criticize an opposing "legally qualified candidate" for the same office. Where a candidate does not appear, but his or her authorized spokesperson does, or where the candidate or his or her committee paid in full or in part for the time, the cable system must provide "comparable time" to the authorized spokesperson of opposing legally qualified candidates, not to the opposing candidate himself or herself (to do so would create a "use" thereby triggering further equal opportunities' rights in the first candidate). The cable system can be required to provide comparable time to unauthorized supporters (or independent committees or PACs) of a candidate if that candidate's opponent appeared in a cablecast with his or her own supporters to any significant extent. Both candidates must be legally qualified for the system to provide comparable time. The system need not provide supporters or spokespersons of fringe candidates (e.g., Lyndon LaRouche) with comparable time. A candidate with a mainstream appeal (e.g., Ross Perot) is not a fringe candidate. C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 18

19 c. Non Candidate Political Programming: Political Editorials and Personal Attacks Additional categories of non candidate political programming constitute political editorials and personal attacks, each one imposing different obligations on the cable operator. (1) Political Editorials If the cable system cablecasts a political editorial, it is subject to requirements under 47 C.F.R (d) of the FCC's political cablecasting regulations. An editorial is a statement representing the view of the cable system, even if it is not labeled an "editorial." It is the statement representative of the operator, its owner, principal officer, manager or other employee permitted to speak for the system. A statement by an employee or commentator is not a system editorial unless it is represented to be so. FCC regulation 47 C.F.R (d) requires that when a cable system either endorses or opposes a legally qualified candidate in an editorial, the system must, within 24 hours, transmit to all other legally qualified candidates for the same office (in the case of an endorsement) or to the candidate opposed in the editorial: Notice of the time, date and channel of the editorial; A script or tape of the editorial; and An offer of a reasonable opportunity to the candidate or spokesman to respond over the system's facilities. The candidate need not be endorsed or opposed directly or by name. It is sufficient if the statement, in effect, endorses or opposes a legally qualified candidate. For example, an editorial "for a change" may be construed as opposing the re election bids of incumbents, and the FCC has found that criticizing a public official's record may be an editorial opposing his or her candidacy for another office, even though that candidacy is not mentioned. Similarly, a statement supporting the official position of a public official who is also a legally qualified candidate may not constitute an editorial endorsement where no clear cut endorsement of the candidate is involved. But denouncing the person (who is also a legally qualified candidate) may be a political editorial if that position is readily and clearly identifiable with the candidate. If the editorial is cablecast within 72 hours prior to the election, the system is required to make appropriate notifications and offers far enough in advance of the cablecast so as to afford candidate(s) a reasonable opportunity to respond in a timely fashion. (2) Personal Attack Rule C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 19

20 III. Kansas Statute a The personal attack rule is applicable during all periods, not just during political campaigns. It is a vestige of the Fairness Doctrine, which the FCC did not repeal for broadcasters. It applies to cablecasts as well. During election season the personal attack rule, because of its exceptions, conceivably applies only to unauthorized spokespersons of candidates. The rule permits an opportunity by a person who has been "personally attacked" to respond on the cable system to the attack if it was made in the course of a fairness type cablecast, that is, during the discussion of controversial issues of public importance. In order for the personal attack rule to be implicated, it must be in the context of a controversial issue of public importance. If during a cable cast involving the discussion of a controversial issue of public importance, an attack is made upon the "honesty, character, integrity, or personal qualities of an identified person or group" (Emphasis added), the cable system must, within a reasonable time and in no event later than one (1) week after the attack, transmit to such persons or group: Notice of the date, time and identification of the cablecast; A script or tape (or accurate summary if a script or tape is unavailable) of the attack; and An offer of a reasonable opportunity to respond over the system's facilities. Whether the attack occurs during the discussion of such a controversial issue is a goodfaith determination to be made by the system. For example, if made during discussion of a private dispute (as opposed to during the discussion of controversial issues of public importance), the attack will not trigger the personal attack rule. There are exceptions to the personal attack rule. The rule does not apply when an "attack" is made on foreign groups or figures, is made during a political "use" by a legally qualified candidate (or if otherwise not a "use," a personal attack by one legally qualified candidate/ spokesperson on other such candidates/spokespersons), or is made during bona fide news programs. Personal attacks made in any editorials are subject to the notification requirements. Kansas Statute a states that (a) No officer or employee of the state of Kansas, any county, any unified school district having 35,000 or more pupils regularly enrolled, any city of the first class or the board of public utilities of the city of Kansas City, Kansas, shall use or authorize the use of public funds or public vehicles, machinery, equipment or supplies or any such governmental C:\Documents and Settings\mscheidt\My Documents\Govt TV\advisory committee\government Policy_4th Amendment.doc 20