Making Sense of Public Access Regulations
The history of cable public access television regulations cannot be reviewed adequately without tracing some of the history of cable regulations in general. There is a hierarchy to cable regulations, with one level building upon another. Initially, this chapter will focus on the full range of cable law, with a greater focus on public access television as the regulations and court cases begin to deal with the particular legal issues that came to the fore as public access television grew.
The beginning of cable regulation dates to 1965, when the Federal Communications Commission issued a First Report and Order maintaining the FCC's authority to regulate cable television (CATV; then called community antenna television): "We have determined as an initial matter that the Communications Act [of 1934] vests in this agency appropriate rulemaking authority over all CATV systems, including those which do not use microwave relay service (the so-called 'off-the-air' systems) " 1 This was the first time the FCC had asserted its jurisdiction over the burgeoning cable television business.
In 1968, the United States Supreme Court heard a case unrelated to cable television that would delineate the circumstances under which the government could regulate speech. The case was United States v. O'Brien, and the test, which came to be known as the O'Brien test, said: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the government interest is unrelated to the suppression of free speech; and if the incidental restriction on