the Board of Directors of Berkeley Community Media finally replied to my letter after about a month of trying to figure out an answer! Here it is:
July 13, 2009
Dear Mr. Moore,
Thank you for taking the time to communicate with the Berkeley Community Media (BCM) Board of Directors in your June letter. We really value the insight and ideas of the members/producers that we serve.
In regard to your invitation for the Board to join you on your show to field questions and or concerns that you have regarding BCM policies and procedures, the Brown Act prohibits Boards of Directors from conducting discussions as a group outside of their formal meeting structure with meetings noticed with an agenda. The Board has a process for addressing policy at BCM, and that business takes place within the structure of our regularly scheduled board meetings, and so we must respectfully decline the invitation.
Your letter did not address the concerns that you referred to so I am unable to give you any answers at this time, but I promise that the Board will look at any specific questions that you bring to our attention in the future.
Sincerely,
Mark Coplan, Chair – BCM Board of Directors
AND IN CASE YOU FORGOT MY ORIGINAL LETTER, IT IS BELOW [I WILL SEND YOU MY REPLY IN A MINUTE]:
Hi! I want to invite David Jolliffe, Arielle Elizabeth, and the board members of Berkeley Community Media to be on a show I am doing. In general the show will be about the philosophy of public access and the current move in California to shut the public access down. But we will also explore the new rules at B-tv. When I know who is interested in being on the show, I will set up a time for us to get together to shoot it.
A main reason why I am doing the show is the new rules confuse and disturb me. Maybe I should outline my concerns about the new rules and my understanding of public access. I know that Berkeley Community Media has other duties and responsibilities associated with running /maintaining Channel 33, the governmental /educational channel. I am only talking about our public access channel, Channel 28.
As I understand it, a public access channel is for the residents of the city to have an uncensored and free channel that will air tapes that they make themselves or like to sponsor so that others of their fellow citizens can be exposed to the content. Such a channel is the residents’ artistic, cultural, and political outlet, their soap box. As I understand it, Berkeley Community Media is the “third party“ which the city of Berkeley has administer our community public access channel, providing equal and easy access for the residents of Berkeley. So the “community“ of the community public access channel is the residents of the city of Berkeley, not just the members of Berkeley Community Media. So it is confusing when the members of BCM get special treatment, such as the new policy of
BCM will prioritize the scheduling of series in the following order:
1.) Series that are locally produced using BCM facilities and equipment.
2.) Series that are locally produced that do not use BCM facilities and equipment.
3.) Series that are made outside of the San Francisco Bay Area. These will be considered “Import” Series.
This seems to violate the equal access for the residents of Berkeley as proclaimed in BCM’s mission statement on the BCM web site. It makes sense to put the local programs made by Berkeley residents ahead of “import“ series, especially if there is a surge of programs filling up the schedule. Is there such a surge at the present time? But it does not make sense to penalize residents who don’t use BCM’s studio or equipment to create their own programs. That is unequal access.
When we asked about this, Arielle responded: “As Programming Coordinator, I personally feel that it is important that all producers should be treated equally. The new policies were written specifically to give all of us (including myself) guidelines on how programming will be scheduled. These policies are designed to promote fairness and equity among the entire membership. Nobody will get special treatment from now on.”
I assumed she meant all producers who belong to BCM will be treated equally and fairly. But the BCM members who use BCM’s studio and equipment will get special treatment. Again the community in the community public access channel is the residents of Berkeley, not the BCM membership. But even the BCM members who don’t use BCM’s studio and equipment will not be treated equally. Why penalize those of us who don’t use BCM’s studio or equipment? Granted, the running and maintaining of the studio and equipment is a big service that BCM provides. And requiring those who will use the studio and equipment to be members, to get trained, to volunteer to be on others’ crews, etc. makes sense. But in the world of camcorders, home computers, YOUTUBE, etc., it doesn’t make sense to penalize residents who create their shows outside of BCM’s studio on their own equipment. It doesn’t make sense to put blocks in the way of the residents to their channel. By encouraging people to create shows with their own equipment and computers it would open BCM’s studio and equipment to those who need the facilities to create their shows. It seems, if we do the math, it is not possible to produce enough shows to fill the 24/7 time slots in a studio that is only open a portion of the day. But encouraging residents who can create their own programs outside BCM’s studio would open b-tv up to the whole community. The whole community would be b-tv’s studio! This would make what happened in Los Angeles much harder to happen in Berkeley. In Los Angeles they shut down the public access by shutting down their studios.
I’m one of those residents who have created programs for b-tv for many years outside of BCM’s studio system, creating a platform for a wide range of community voices. I have donated to BCM over the years because I value BCM… I value public access. But I did not join BCM because I don’t use BCM’s facilities… And I am not a joiner. But when the new rules were leaked out and it was clear it was definitely a disadvantage in terms of keeping my time slots if I was not a BCM member, I became a member. Then it turned out it doesn’t matter because I don’t use BCM’s facilities. Obviously this is a case of different basic philosophies of community public access. I am eager to look at and explore the differences.
But it gets worse! According to the new policy outline:
“- All series producers will be required to have an active membership on file at Berkeley Community Media.”
This excludes at least ninety eight percent of the Berkeley residents. This hijacks our community channel. It turns our community channel into a private club… A members –only club. This is the exact opposite of what public access should be! The function of the Berkeley Community Media is to provide equal, free, and easy access for the residents of Berkeley to OUR community television channel. It is not its role to put blocks and fences between the residents and full access to our community channel. This is extremely disturbing and legally questionable. It creates a “have to belong to be played” reality… If not a pay-to-play proposition. If I hadn’t become a member, I would have lost my series… And more importantly I would have lost my right to have or sponsor a series on b-tv. This is not right, fair, or equal. This is not public access. And it raises all kinds of legal questions.
Moreover, as I understand it, legally the content of the shows that play on the public access channel is the sole responsibility of the resident who created/submitted/sponsored the shows. The courts have consistently ruled that the city and the body, be it the cable company or an organization such as BCM, that runs the public access channel may not restrict the contents of public access shows. This is a basic principle of public access. The city can decide not to have a public access channel. But if it decides to have one, it can’t restrict the content. The totality of this legal fire wall surprised even me! During my research for this, I went to the FCC’s official web site and found this:
“Federal law permitted a cable operator to prohibit the use of a PEG channel for programming which contained obscene material, sexually explicit conduct, indecency, nudity, or material soliciting or promoting unlawful conduct. However, The U.S. Supreme Court determined that this law was unconstitutional. Therefore, cable operators may not control the content of programming on public access channels with the exception that the cable operator may refuse to transmit a public access program, or a portion of the program, which the cable operator reasonably believes contains obscenity.”
from http://www.fcc.gov/mb/facts/pegfacts.html
So, with the exception of obscene material as defined by law, there is not room for restriction of content of public access shows. “Indecent“ shows must be aired between 10P.M. and 6A.M. Personally I always have felt more comfortable in the freedom of late night slots, even when most of the time, the content of the shows does not require late night slots. What is troublesome about the new rules is they appear to invade the content control of the resident producer /sponsor. Such invasion would be illegal, as I understand it. These invasions are not sexy. They are not focused on nudity, eroticism, or profanity. But they do appear to be designed to shape and control the content of the shows. For example, the new structure creates a two-tier system of kinds of series available.
Types of Series
1. Three Airs Per Week Series – A three airs per week series is available to producers who are consistently creating new content. This type of series airs no more than three times a week. Producers must submit at least six (6) new episodes of their program each season to be considered a three airs per week series. Producers must submit at least two (2) new episodes of their program at the beginning of each season in order to qualify as a weekly series.
2. One Air Per Week Series – A one air per week series is available to producers who sporadically create new content. This type of series airs no more than once a week. Producers must submit at least one (1) new episode of their program each season to be considered a one air per week series. Producers must submit at least three (3) old episodes of their program that they wish to replay throughout the season in order to qualify as a one air per week series.
As if this is not a clear enough attempt to control and shape the content of the shows, the new rules go on to define what new is new enough!
— New episodes for three airs per week series must be submitted every 45 days. A new episode is defined as a program that, in whole or in substantial part (75%), has not previously aired on Channel 28.
— A series will be cancelled if new episodes are not submitted in a timely manner.
— False identification of an episode as “new” will result in immediate cancellation of a series.
All of which is a very clear breach of the legal fire wall around the sole responsibility of the resident producer /sponsor for the content of her shows. Moreover the threat of immediate cancellation sets up a very disturbing power structure. The reason for this new, and probably illegal, rule is not at all clear. And this dreadful rule is being applied to residents who consistently are in fact creating programs for b-tv. So let us explore the reasons for, and the legality, of this rule.
There is a lot more we can explore on the show. So I will end. So when would be a good time for you guys to come over to tape the show? I am also sending this letter to the local newspapers because I believe that this warrants a deep community discussion. After all, b-tv is OUR community channel… Or at least it is supposed to be!
In Freedom,
Frank Moore
6/5/2009
Emailed 7/23/09 to:
David Jolliffe (Executive Director) & Arielle Elizabeth (Programming Coordinator)
Snailed to Current BCM Board Members 7/24/09:
Edmound Broussard
Oriana Saportas
Mark Coplan (Board Chair)
Moby Theobald
Crescent Diamond (Vice Chair)
Adnan Touma
Mitch Lerman (Treasurer)
Ed Young (Secretary)
In Freedom,
Frank Moore