Appeals court revives suit over public access cable-channel fees

Monday, June 21, 1999

A Houston public access cable channel’s policy of charging fees to air programs not produced locally may violate the First Amendment, a federal appeals court ruled Friday.

Access Houston Cable Corporation claims that its policy of charging only non-local programs to broadcast furthers a significant government interest in promoting localism and enhancing community self-expression. But Nationalist Television, which advocates a “pro-majority” or “white supremacist” viewpoint, sued the cable channel, contending the fee requirement violated their First Amendment free-expression rights.

Access had charged Nationalist Television a $100-per-hour fee to cable-cast its show Airlink, which was produced at a studio in Mississippi.

A federal district court dismissed Nationalist’s lawsuit, ruling that the fee requirement was a content-neutral regulation that only incidentally burdened free-speech rights.

On appeal in Horton v. City of Houston, Nationalist argued that the fee regulation was an impermissible content-based rule that allowed Access to discriminate against speech it disliked. In First Amendment law, content-based regulations — or regulations that vary based on the content of speech — are subject to a higher degree of scrutiny in the courts than content-neutral regulations.

The 5th Circuit agreed with the lower court that the law was content-neutral, writing that the “fee rule is content-neutral because the rule does not, by its terms, distinguish between favored speech and disfavored speech.”

“Access’s fee regulation is an evenhanded charge on all providers submitting non-locally produced programming, regardless of the content or viewpoint contained in the program,” the court wrote.

The 5th Circuit analyzed the fee regulation under the U.S. Supreme Court’s four-part test for examining the constitutionality of content-neutral regulations, which the high court first established in the 1968 decision United States v. O’Brien.

The O’Brien test provides that a government regulation is constitutional if:

  • It is within the constitutional power of the government.
  • It furthers an important or substantial governmental interest.
  • It is unrelated to the suppression of free expression.
  • It only incidentally restricts First Amendment freedoms and is narrowly drawn.

The 5th Circuit parted ways with the lower court by ruling that Access had failed to show that the fee requirement was narrowly enough drawn to protect local interests by encouraging residents to produce programs of community interest.

“Access has not provided any evidence linking the amount charged to non-local producers and the promotion of localism,” the 5th Circuit found. “More precisely, Access has not shown the amount of revenue generated from the fee, the number of providers who have been charged the fee, or whether the fees have actually helped purchase equipment, train producers, enhance community self-expression or offset amounts underwritten by Houston cable subscribers.”

The court also pointed to testimony in the case that quoted Access’s executive director as saying that he had recommended abolition of the fee to the board of directors. “The inescapable conclusion is that the fee serves no measurable purpose,” the 5th Circuit wrote.

The appeals court ordered the case remanded — or sent back down — to the federal district court so that Access can try to “prove how much revenue accrues from the fee for non-locally produced programs, as well as the purposes for which it uses the revenue.”

Regulations such as this, which burden protected speech, are “not to be rubber-stamped,” the court concluded.