Settlement Provides Due Process for Cable Access Producers

News Release: 
Monday, November 2, 2009

TCI Cablevision (now owned by AT&T) and producer Michael Aivaz have reached a settlement to a lawsuit in federal court over the cancellation of Aivaz’s program on Seattle’s cable access television channel. Under terms of the settlement, TCI for the first time has established formal procedures for acting on complaints about the content of public access programming. No longer will TCI have the power to suspend programming on its own; the decision will be made by a three-member Review Board that will include a representative selected by public access producers. The American Civil Liberties Union of Washington provided legal representation to Aivaz in challenging the cancellation.

"This settlement provides due process-type protections that were sorely lacking previously. Producers will no longer face the prospect of suspension without getting to present their side of the story," said Marc Levy, ACLU-WA cooperating attorney in the case, along with Paul Lawrence.

Michael Aivaz is producer of "The Mike Hunt Show," a sexually explicit program aired on Channel 29, a cable access channel managed by TCI Cablevision. As part of its franchise agreement with the City of Seattle, TCI Cablevision is required to provide a cable access television channel to serve as an outlet for speech by any member of the community who wishes to produce a program. Protected by the First Amendment, producers may air any programming so long as it is not legally obscene or libelous. Federal law prohibits cable operators from exercising prior restraint by previewing programs for content.

TCI cancelled Aivaz’s program in May, 1998 after receiving a citizen complaint over its sexual content. The ACLU objected that TCI pulled the show from the air without having any form of due process or standards to determine whether it was obscene. The ACLU-WA also contended that the show, which aired at 1 a.m., did not violate the Supreme Court's "community standards" test for obscenity; Aivaz aired tapes that were available in video stores in the community. TCI also cancelled a sexually explicit program by producer T.C. Williamson, whom the ACLU did not represent.

TCI brought suit in federal court seeking a declaration that programming by Aivaz and Williamson was obscene and that TCI was entitled to suspend their programming privileges on its belief that their shows were obscene. In December, 1998, U.S. District Court Judge John Coughenour upheld TCI Cablevision’s decision to suspend the programs based on his finding that the particular show at issue was obscene. In his decision, though, Judge Coughenour expressed reservations over whether TCI’s summary cancellation of the programs would "survive scrutiny" for procedural due process. Aivaz appealed this decision to the United State Ninth Circuit Court of Appeals. Under terms of the settlement, the parties have agreed to ask Judge Coughenour to vacate his decision and dismiss the appeal.

The new procedures adopted under the settlement provide that a program producer must receive written notice of alleged violations and an opportunity to contest proposed sanctions. Before sanctions are imposed, a three-person Review Board must hold a hearing at which the producer may present evidence and arguments in his or her defense. The Review Board consists of one person designated by the cable access manager, one person chosen by vote of program producers, and one person selected by agreement of the other two members of the Review Board.

The City is creating a nonprofit manager, to be known as Seattle Community Access Network, to replace TCI in managing the cable access channel. The new body will not be bound by the terms of the settlement with TCI.

"We hope that the new City manager for cable access programming adopts the review process in this settlement or one similar. Doing so will establish clear guidelines and prevent problems in handling future disputes over program content," said ACLU attorney Marc Levy.

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