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Turning the Tide:
Turning the Tide: The "Telecommunications Access Act" and the Future of Noncommercial Access

by Jeffrey Hops
Director, Government Relations Alliance for Community Media

CPSR News Volume 15, Number 2: Spring 1997

The most annoying thing about pessimists is that they're usually right. In the years before the passage of the Telecommunications Act of 1996, public interest groups protesting "the telecom bill" told anyone who would listen that the legislation would bring a wave of media mergers and acquisitions, higher consumer prices, greater vertical monopolization of the speech marketplace, and a new wave of regulatory and constitutional litigation. Meanwhile, both Senator Larry Pressler (R-SD), then-Chair of the Senate Commerce Committee, and Representative Thomas Bliley (R-VA), his cohort in the House of Representatives, glibly promised that "This is the biggest jobs bill ever to pass this Congress." Yeah, right.

One year later, it is safe to say that the public interest groups were on the mark. Everything they predicted either happened or is happening now. Time-Warner laid off 1,000 workers when it acquired Turner Broadcasting; TCI cut 2,500 jobs while it substantially raised cable rates around the country; and AT and T cut 7,700 jobs from its payroll in 1996, although it did hire a slightly higher amount in other areas. So much for jobs, competition, and falling prices.

Unfortunately, there is no sign that the mergers, price increases, deterioration in some services, and layoffs will stop any time soon. As conglomerate merges with conglomerate, as service provider choice in smaller towns and communities is eliminated, the chances for diverse voices to be heard gets smaller and smaller, threatening to die.

The Alliance for Community Media, a national membership organization dedicated to ensuring everyone's access to the electronic media, has decided to fight back. Under the leadership of its Executive Director, Barry Forbes, the organization decided that the time had come to reframe the issue of telecommunications policy in a way that would reach both voters and legislators. "This is not just an abstract issue of corporate ownership," Forbes pointed out. "This is about everyone's right, not only to receive speech, but to disseminate it. Dissemination is protected by the First Amendment, although it is being eroded into nonexistence by horizontal mergers and the vertical integration of studios, distributors, and networks. We have to create a mechanism to ensure that there is a space for noncommercial voices in the electronic media."

"The Internet, of course, is the ideal model of a communications system where everyone can be a speaker as well as a receiver at relatively small cost," stated Forbes. "But not everyone has a computer -- and right now, at least, the Internet is not as pervasive a voice in our culture as television. Public, educational, and governmental (PEG) access on cable channels is designed to be the television equivalent of the Internet -- a place where anyone can go to reach a sizable television-watching audience, without the censorious effect of corporate sponsorship. We want PEG access to telecommunications services to be available on all media, whether old or new."

Starting in January of this year, the Alliance began to circulate a draft "Telecommunications Access Act" for review and comment by the public interest community. The next step is to take the bill to Capitol Hill, and start what will probably be a five-to-ten year process of getting the bill passed into law.

The major principle behind the bill is that telecommunications entities use spectrum and public rights-of-way (public streets, highways, and other government-owned land) to transmit and lay wires, and that these are public property as much as our national parks are public property -- and equally valuable. Consequently, all telecommunications entities should be required to pay market-equivalent rates to federal, state, and local governments for the use of these public resources. In-kind payments (in the form of noncommercial access to all media) would be considered an appropriate form of compensation to the general public.

The bill also offers socially beneficial ways to invest the money raised through fees. For instance, communities are encouraged to build Internet access centers, places where people without computers can go to surf the net, start their own home pages, and keep email accounts. Many PEG centers are already providing this additional service, some with funding from their localities, and it is proving extremely popular.

An overview of the draft "Telecommunications Access Act:"

• The draft bill recognizes that public rights-of-way are the property of states and localities, and that the electromagnetic spectrum is wholly owned by the federal government.
• It requires all users of the federal electromagnetic spectrum to pay for it through the FCC's auction process. The fee would be defined as rent paid to the government for use of government property.
• It requires all users of public rights-of-way (such as poles and conduits that cross public property) to pay to the state (or subdivisions of the state) a per-foot fee as compensation for the use of public easements. This requirement would not affect any current franchise agreements adopted subject to current law, but would preempt any state legislation that currently provides telecommunications entities with gratis use of public rights-of-way.
• Revenue collected under this act would go into the Community Communications Endowment. The Endowment would provide operating grants and transmission infrastructure and maintenance for noncommercial public and educational television and radio stations, for local PEG and Internet access centers; and for the construction, management, and maintenance of a national noncommercial public and educational satellite network; and provide funds for link-ups with Direct Broadcast Satellite noncommercial capacity. Grants would not be used for program production (in order to avoid the ongoing problems that PBS has had with producing controversial programming).
• The structure and governance of the Community Communications Endowment would be similar to that of the Corporation for Public Broadcasting.
• PEG and Internet access centers would be defined in federal law so as to guarantee their noncommercial status.
• In awarding access grants, the federal government and the states would give special consideration to areas that have been underserved with regard to access to telecommunications services.

This is an ambitious bill and passing it will be an ambitious effort. "Right now, our major goal in seeking introduction of this bill is to turn the debate from 'taxing telecommunications subscribers,' which is what the industry is trying to present, to 'making the industry pay full value for use of the public's resources,' a much more truthful description of the situation," Forbes explained. "The industry is now going from state to state saying that local demands for compensation for the rights-of-way are a tax on phone and cable subscribers. The fact of the matter is that many phone companies have been getting a free ride for almost a century. We think that practice should stop right away."

To that end, the Alliance also has produced model state legislation to achieve goals similar to those of the federal act, but at the state level. The model state legislation includes a requirement that all wire-line telecommunications providers to pay a per-foot easement fee to the state, in addition to any franchise requirements enacted by localities. All proceeds would be dedicated to state access funds, for the same purposes and goals as specified in the federal bill.

"This is going to be a long-haul effort," said Forbes. "The bill is not expected to pass in this Congress, and probably not the next one, either. But it will happen. When cable and phone rates continue to rise and when Disney, Westinghouse, and Fox own virtually all mass media, the tide will turn, as it did when the 1992 Cable Act was passed. Our moment will come. And we will be prepared when that happens."

The Alliance for Community Media welcomes your comments. Please call the Alliance Government Relations Department at 202-393-2650, extension 14 for more information, or send email to acm@alliancecm.org.

Jeffrey Hops, an attorney, is Director of Government Relations for the Alliance for Community Media. During his career he has served on the staffs of two members of Congress, litigated with the federal government, and taught constitutional and international law in Eastern Europe. He is a joint-degree graduate of NYU Law School and Princeton's Woodrow Wilson School with a Master's Degree in Public Affairs.

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