"Over the spring and summer of 2008, I had the pleasure of working with an excellent community Task Force that was asked to undertake a process of developing articles of incorporation and by-laws for PAC-14. After several months, the work of this community body was placed on hiatus. Subsequent to that time, I have tried to keep abreast of the discussions between the City and County regarding the future organizational structure of PAC-14. I recently received a copy of the draft by-laws prepared by the County and was asked to provide some general comments about that document.

The creation of an independent nonprofit corporation to manage public, educational, and government access channels and the Community Media Center (CMC) has long been considered a "best practices" approach to establishing and operating PEG access. There are hundreds of nonprofit organizations providing PEG access services in large and small cities throughout the United States, in communities as diverse as Monterey, California; Manhattan, New York; Salina, Kansas and Montgomery County, Maryland. Some of these organizations have been operating for over 30 years, so there is a significant body of knowledge regarding the "factors for success" in this field.

It is important to recognize that when a nonprofit access management organization is established and given the responsibility of operating the PEG access channels and the CMC, there is a contract or agreement between that designated PEG access management organization and the local government. The primary funding for the operation of the PEG access channels and the CMC is typically provided by the cable operator as a result of the franchise agreement between the cable operator and the local government. The PEG funding flows from the cable operator to the local government and from the local government to the access management organization. The specific PEG services to be provided and accountability for funding is delineated in the access management agreement -- NOT in the by-laws.

Fundamental to a successful PEG access nonprofit is the creation an organizational structure that will result in an entity that: (a) is broadly representatives of the entire community, (b) is designed to encourage community partnering (both public and private), and (c) is positioned to be able to solicit funding from a variety of sources. For example:

The organization should be structured in a manner that assures that it is truly independent from government agencies. This insulates the government from legal liability for program content and assures that there will be no questions from the IRS as to whether the organization is actually an "instrumentality of government" rather than a truly independent nonprofit organization. This insulation has proven to be valuable to both the local government and cable companies in many communities.

The organization should be structured in a manner that assures broad community representation. The Board of Directors should be designated and/or identified in a manner that encourages true community participation rather than having most or all of the Board members appointed by one or two specific governmental or educational agencies. Many nonprofit PEG access management entities are membership organizations that permit any person, organization, or local business that supports the purposes and mission of the PEG access organization to be a voting member. In these cases, the Board of Directors frequently includes at least three categories of Board members:

Elected by the membership

Designated by the "institutional" partners (most commonly including the local government(s), K-12 schools, and college/university)

Appointed for special expertise by the Board (e.g., legal, accounting, marketing)

I have worked with local governments and community access organizations for over 35 years and have seen many successes and some failures. There are two primary factors that come into play when we see situations were PEG access does not survive: (1) lack of adequate and secure long term funding; and (2) an organizational structure that does not follow the basic principles describe above.

Furthermore, I am aware of one situation (and there may be others I am not aware of) where the Attorney General of a state ruled in a letter of opinion that an access organization that was structured in a manner in which all or most of its Board of Directors were either elected officials or appointed by elected officials was deemed to be a de facto governmental body.

I reviewed the by-laws for PAC-14 that were drafted by the County through the lens of my many years of experience developing by-laws with similar groups and observing the overall successes and failures in the field of PEG access.

I have a number of concerns regarding these by-laws, but limit my comments to three areas:

First, Article III establishes voting and nonvoting categories of membership. The voting members are all elected officials. The voting members hold controlling rights over all major and most minor affects of the organization.

Second, Article VII establishes the Board of Directors that consists of nine people who are either elected officials or appointed by elected officials. Furthermore, Article 7.02 indicates that the annual budget must be submitted to the City and County for approval and treatment in the same manner as other government agencies.

These two sections raise serious concerns, including the strong possibility that the organization could be declared an "instrumentality of government" by the IRS.

Third, Section 11.04 establishes a Programming Committee that will control programming content either directly or indirectly. The Programming Committee will consist of Board members (all elected officials or persons appointed by elected officials) and six others persons appointed by the Board that consists of elected officials or persons appointed by elected officials.

Section 11.04 states "there shall be no regulation of program content that will violate the First Amendment." However, the Programming Committee structure -- in conjunction with the Programming Guidelines in Section 11.04.F (that are often very subjective) -- creates a potentially "chilling" effect and significant opportunity for First Amendment violations. For example, the "Production Values" [Section 11.04.F.(1)] include a number of troublesome requirements, and imply that a program could be rejected because it did not have "proper set design" or a microphone was not properly placed to permit the person to "be heard clearly". While these items don’t appear to deal with program content, either one could be used as an easy excuse to prohibit a program from being aired because it included opinions that were inconsistent with that of the local government or government appointees who are on the Board. Clearly, a local government should not place itself, its elected officials or appointees in a situation where they could so easily be subjected to lawsuits based upon allegations of First Amendment violations.

Moreover, programming guidelines should not be in the by-laws of an access corporation. They belong in a separate body of operating policies and procedures that guide how the PEG channels and CMC are operated. Those guidelines would be established by the Board of Directors.

I offer these comments to assist the City and County to allow PAC-14 to move to the next level of development, while learning the lessons available from the experiences of PEG access operations across the country during the past 30+ years.

I look forward to the opportunity to discuss these matters in greater depth."