Philadelphia Community Access Coalition
				Home | About | Join | Act | Contact | Search | News | Calendar

MS. ZUROMASKIS: Good afternoon. My name is Tamar Zuromaskis. I'm from the American Civil Liberties Union. And this is T.J. Tu. We will together be making a brief joint presentation about the constitutional issues in this matter, and Mr. Tu will be speaking first.

MR. TU: Thank you. I am T.J. Tu, and I am here today s a representative of the American Civil Liberties Union of Pennsylvania. On behalf of our nearly 4,000 members in the greater Philadelphia area, I extend our thanks to the City Law and Government Committee for allowing us the opportunity to offer testimony as a part of your ongoing inquiry into the establishment of public access cable in Philadelphia.

The ACLU's interest in public access cable stems from the first amendment's guarantee of freedom of expression, a guarantee designed to ensure citizens a diversity of information and opinion. For over 25 years, access channels have given the public, who otherwise would have no means to communicate via cable television, the opportunity to use a medium that the Supreme Court in 1994 noted was "at the center of an ongoing telecommunication revolution with still undefined potential to affect the way we communicate and develop our intellectual resources."

Having the ability to transmit programming over cable systems without editorial control from the government or the cable operator allows the public to become sources of information in the electronic marketplace of ideas. It has been long been understood that the first amendment serves not only to protect speech, but moreover, to promote speech.

In its enactment of the Cable Communications Policy Act of 1984, Congress stressed the importance of public access cable in bringing about what it called the fundamental goal of the first amendment. Prior to this 1984 act, the federal government believed that public access was so crucial to fulfilling free speech guarantees, that the FCC required cable systems to provide it.

Fortunately, by the time the Supreme Court found in 1979 that the federal government lacked the authority to impose this rule, the majority of localities had realized the importance of public access and public access, and provisions were becoming standard in franchise agreements with cable providers.

Congress, in 1984, affirmed the rights of localities to mandate public access in their franchise agreements, appropriately pointing out that public access channels are often the video equivalent of a speaker soap box.

In 1997, the Supreme Court again scrutinized the federal government's ability to mandate the programming of cable providers. In this case, Turner Broadcast Systems, Incorporated versus FCC, the court found that the government could require cable providers to carry certain local broadcasts, invoking the idea that the government has an interest in promoting the widespread dissemination of information from a multiplicity of sources. Such promotion furthers the goals contained in the original Communications Act of 1934, of providing a fair, efficient, and equitable distribution of broadcast services.

The ACLU urges this committee to recognize a similar governmental interest in promoting speech from the wide range of viewpoints held by the citizenry of Philadelphia. Ensuring the public's fair and equitable access to the cable medium would be a strong reaffirmation of this city's commitment to furthering the principles of the first amendment. We believe that the goals of the first amendment would best be served, and Philadelphians' diverse needs for information and opinion would be greatly met through the creation of public access cable stations. We hope that City Council will rededicate itself to the intentions outlined in the 1983 enabling ordinance and work with the city's next mayor to carry out those intentions.

Throughout the country, we have seen how public access cable has generated the kind of robust discussion and public engagement that the first amendment serves to foster. In many cities, it has become the electronic marketplace of ideas that Congress anticipated 15 years ago.

The ACLU believes that residents of Philadelphia should not be excluded from similarly accessing the cable television medium. It is our hope that the committee will look favorably upon the concerns raised by those citizens advocating for public access and will further the necessary steps to provide the physical infrastructure that will make it possible.

Of course, whenever greater access to media that will promote unfettered speech is provided, the possibility of indecent and/or obscene speech being communicated raises some concerns. To address these issues, I turn your attention back to Tamar Zuromaskis, also from the ACLU. Following her testimony, we will be glad to take any questions that you may have.

MS. ZUROMASKIS: Thank you, T.J.

Good afternoon. As I said before, my name is Tamar Zuromaskis. I'm a legislative intern with the American Civil Liberties Union and a second-year law student at the University of Pennsylvania.

I'm testifying today to allay any possible fears that establishment of public access television will cause indecent or obscene programming to be accessible to children or forced onto unwilling adults.

There is a concern that if public access is granted to cable television, that the programming may be sexually explicit and, thus, unsuitable for children. Adults may also be troubled that they themselves will be exposed to programming that they find offensive or embarrassing. While these concerns are understandable, they are, in fact, unfounded.

There are numerous ways in which a person can prevent these programs from ever being broadcasted into his or her home. Additionally, even with public access in place, the cable companies will still reserve the right not to broadcast program that they consider to be indecent. Finally, if the City finds programming to be indecent or obscene, it has the right to limit programming times or to censor the program entirely.

While I must strenuously emphasize that the ACLU does not endorse government or government-endorsed censorship of speech, we raise the two second undesirable safeguards to stress the fact that once cable television is established, the City not find itself helpless to regulate obscene or indecent programming.

The ACLU feels that the best way to block a child's access to inappropriate programming is through parental involvement. There are numerous ways in which a parent can do this. The Cable Communications Policy Act provides that cable companies must provide lock boxes to subscribers upon request. These devices allow adults to lock out channels or programs that they consider unsuitable for children or that they themselves prefer not to watch. Cable subscribers who are concerned about the content of cable access stations or any other stations, for that matter, may order and use a lock box.

Another option for concerned parents is not to subscribe to cable television. Cable television is a paid service which is only delivered to customers upon request. Customers who do not subscribe to cable television still have a wide variety of a choice of network, local, and public television programs, including news, dramas, situation comedies, talk shows, nature programs, cartoons, and documentaries. Those who choose not to subscribe also enjoy the added benefit of saving money.

A third option for parents who are concerned about inappropriate programming for their children is simply not to have a television in the home. In an age where nearly all Americans own a TV, it may seem like a surprising suggestion, but it is important to remember that one is never compelled to have a television. As with cable programming, the television itself is an invited guest into the home. Therefore, instead of seeking to limit the content of television, parents might consider getting rid of the television altogether and encouraging children to read, play games, or take up a hobby instead.

Another key reason why the City Council does not need to worry about indecent programming lies in the fact that cable companies need not broadcast everything with which they are presented. Denver Area Educational Television Communications Consortium v. FCC, a United States Supreme Court case, held constitutional the provision of the Cable Television Consumer Protection and Competition Act that allows cable providers to choose not to air programming that it "reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner, as measured by contemporary community standards." Therefore, cable operators who feel that indecent material may offend there viewers are not compelled broadcast it.

Finally, even if the City provides cable access television, they reserve the right to prohibit or restrict the broadcasting of obscene or indecent programming. Historically, obscenity has not been interpreted as protected free speech. In the 1973 case of Miller v. California,, the Supreme Court a work as "obscene" if it appealed to a prurient interest in sex, depicted sexual conduct in a way that is patently offensive, and generally lacked any serious literary, artistic, political or scientific value. Therefore, any programming that meets these criteria may be censored.

Additionally, the City may the limit the times at which indecent material is aired. The 1978 Supreme Court decision of FCC versus Pacifica held that the government may require that indecent radio and television programming be broadcast only at times when children are unlikely to be tuning in. Therefore, material that is not obscene but is indecent may be limited as to the times at which it is aired.

Please let me emphasize once again that the ACLU does not endorse censorship by the government or by cable companies using governmental permission. We believe that tests for obscenity and indecency are vague and too easily manipulated to be effective. Furthermore, we believe limiting access to any material on the basis of a sexual content and otherwise is a violation of the first amendment of the United States Constitution.

I mentioned these court decisions only to emphasize that there are numerous constitutionally-recognized safeguards in place to prevent children and unwilling adults from viewing objectionable public access programming. The ACLU continues to believe that personal supervision and responsibility are the best ways to ensure that children only view age-appropriate programming.

Thank you for providing us with the opportunity to testify. We'll be glad to answer any questions you may have.

(Applause.)

COUNCILMAN COHEN: Thank you.

COUNCILMAN COHEN: Mr. Pardini?

MR. PARDINI: Yes, sir?

COUNCILMAN COHEN: Just on some financial matters. Hearing you and reading your statement, what funds has Comcast actually paid to the City of Philadelphia for the purpose of providing public access?

MR. PARDINI: The operating funds, which are a part of the overall franchise fees, have been paid to the City of Philadelphia.

COUNCILMAN COHEN: In one lump sum? Is it grouped together?

MR. PARDINI: As part of each year's payment of the franchise fee.

COUNCILMAN COHEN: Do you have any estimate as to what that total figure has been?

MR. PARDINI: Our annual franchise fees or the operating amount?

COUNCILMAN COHEN: No, the amount that would go to public access.

MR. PARDINI: It would have been, according to the ordinance, up to $125,000 per year over the last 15 years paid to the City.

COUNCILMAN COHEN: And that would apply to all of the cable companies?

MR. PARDINI: Correct.

COUNCILMAN COHEN: So that the City of Philadelphia itself owes a large sum of money for public access purposes; is that right?

(Applause.)

COUNCILMAN COHEN: And the money has been diverted for other purposes?

MR. PARDINI: Well, I'm not the City's auditor, so I can't comment on that statement.

COUNCILMAN COHEN: All right. With respect to the capital expenditures, none of that has been paid yet?

MR. PARDINI: None of that has been paid. It remains listed as a liability on our company's books because there is no access corporation to which to pay it.

COUNCILMAN COHEN: And what is the position of Comcast with respect to the full payments that you read to us, if they'd all be available once --

MR. PARDINI: If the City has an access corporation, then it is Comcast's policy and position to be in full compliance, and that means paying the money.

COUNCILMAN COHEN: Now, what would your answer be to Mr. Schwartz's statement that your company has considered other items as a priority but has not considered public access as a priority?

MR. PARDINI: I would say that with today's discussion of free speech, Mr. Schwartz is entitled to his opinion.

COUNCILMAN COHEN: But do you agree with that opinion?

MR. PARDINI: No, I do not.

COUNCILMAN COHEN: Could you tell us why not.

MR. PARDINI: I believe that Comcast has fulfilled its obligations with respect to public access and is not a party to any inaction on the part of the City.

COUNCILMAN COHEN: Well, apparently, Comcast has taken the leadership in the different areas that Mr. Schwartz mentioned. Why wouldn't you feel, as a communications company, that you have a very special obligation to make public access a reality?

MR. PARDINI: Well, Comcast has moved as far forward on public access as it can. If there is a business opportunity such as QVC or Comcast Online or cable modems that are completely within our ability to implement, then we move ahead with those.

But where there is no access corporation, how can Comcast move ahead?

COUNCILMAN COHEN: Did Comcast play any role in the preparation of that video that the deputy mayor showed to the Councilmembers?

MR. PARDINI: Representatives of the Administration had asked me for information regarding types of public access programming in a meeting that took place in March, early March of this year.

We reviewed those tapes and also reviewed complete program listings of such public access facilities as Manhattan Neighborhood Network (MNN) and also looked at other program schedules as well. So we did not simply provide examples of controversial programming; we provided examples and schedules of the full range of public access programming.

What the Administration chose to select from that is what they chose to do.

COUNCILMAN COHEN: But you did provide them with the material which they did show to Councilmembers; is that right?

MR. PARDINI: Yes. We gave the Administration the same cooperation in research as we would provide to anyone.

COUNCILMAN COHEN: You heard the testimony before that all that was shown to the Councilmembers was that portion which the Administration felt emphasized pornography and hate crimes?

MR. PARDINI: And I can say, Councilman Cohen, that I was not involved in the preparation of that presentation or in its execution other than to fulfill the request of the Administration for information on public access programming.

COUNCILMAN COHEN: Councilman Rizzo?

COUNCILMAN RIZZO: Mr. Pardini, the financial commitment that Greater Media has to public access, with the acquisition of Greater Media, will any of those numbers change?

MR. PARDINI: Absolutely not. The franchise agreements have been established, the amounts are set. And should Comcast receive approval for the transfer of control for Area 1, then any obligations that Greater Media negotiated would be fulfilled by Comcast and specifically the funding commitments for public access. We affirm all of those obligations.

COUNCILMAN RIZZO: Thank you.

Thank you, Mr. Chairman.

COUNCILMAN COHEN: Do any members of the panel have any very brief responses that they want to make to any other members of the panel?

Mr. Schwartz?

MR. SCHWARTZ: Two comments on each side of this.

My point about priority is, as you've asked, not just in whether it's complying with the law but in its own programming, whether it has pursued this programming and kind of opportunity. And the answer is, as a Comcast viewer, largely not.

If you look at the recent mayoral campaign, I would suggest that what the conventional channels tried to do to provide access to citizens and whatever, what the Inquirer did through "Community Voices," what the Daily News has done, was far in excess of what this cable channel did even though it is supposed to be the access program. It is not, in my judgment, a priority defined as where it is investing money and seeking business opportunities.

As to the other side of it, the City's side, and to get at the question of what happened here, I did look at that. And I think the depiction is correct. During the Goode Administration, as the City got into fiscal difficulty, nothing but salvaging the budget and the City was of priority at that point. So taking the money that was coming from these franchise fees was merely put into the General Fund, as it is now, and being used for general operating expenses, as the mayor has the right to do that with General Fund revenues.

Why, in the eight years of the Rendell Administration, as we've moved out of this kind of fiscal crisis, they have not seized the initiative is something you'll have to ask them, but it's quite clear from the statements that have come out of the Mayor's office, that they are really opposed to this in ways that are unfathomable to me.

And so nothing has happened for it by design, not because of fiscal default.

But what is going on here is that you're taking money, as you put it, that is supposed to be applied to the operation of a public access channel and simply using it to meet the operating expenses of the General Fund. And I wonder if some set of groups like ours went to court over this, how well we might do.

Thank you.

COUNCILMAN COHEN: Thank you.

And I want to thank all of the members of the panel very much.

MS. ZUROMASKIS: Thank you.

(Applause.)

COUNCILMAN COHEN: Linda Waters Richardson, Pedro Rodriguez, Patricia McNamara, Kay McKenna, Jean Allen, and Sarah King. Please come forward if your name has been called.

I'm going to ask Mr. Shapiro to act as chairman for the time being. I think Councilman Ortiz will be here. I will be back very shortly. And we'd like you to decide who will speak and in what order.

Pat McNamara, since I know you best, can you decide? Would you be the last speaker?

MS. MCNAMARA: Sure.

COUNCILMAN COHEN: All right. Who would like to be first? Go right ahead.

Previous (ED SCHWARTZ)

Index of All Testifiers

Next (SARAH KING)