Cable Franchising and the First Amendment

In awarding and regulating cable franchises, cities often extract from cable operators promises and conditions such as access channels in exchange for exclusive use of public rights-of-way. Professor William Lee in this Article argues that this cable franchising process violates the first amendment rights of cable operators. Professor Lee rejects the two rationales for municipal cable regulation by contending that cable is not a natural monopoly in every market and that cable's use of public rights-of-way requires content neutral regulation. The exacting of conditions such as access channels, however, is not content neutral regulation.

Furthermore, censorship decisions that municipalities require of cable operators are sufficiently subjective to violate the first amendment. Professor Lee concludes that an open entry policy for cable operators will allow existing law and natural economic forces to regulate the cable market in accordance with the strong first amendment tradition that limits government interference with freedom of expression.