earning income as a peg access facility - legal considerations
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PEG, legal, Moss & Barnett, Brian Grogan, Wisconsin Community Media,TRANSCRIPT
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Earning Income as a PEG Access Facility
Legal Considerations
Wisconsin Community Media - Spring Conference
Milwaukee, WI – April 26-27, 2013
Brian Grogan, Esq.
Question
How do community programming centers make
up revenue lost from decreasing franchise fees
or reduced/eliminated PEG fees?
First – why is this happening now?
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Problem • Cable operator revenue is not growing
– Thus franchise fee revenue is relatively static
• Cities cannot impose franchise fee on:
– Telecommunications – regulated by PUC
– Broadband – regulated by FCC
• Community programming centers depend on
two types of revenue to operate:
1.Franchise fees
– if city dedicates a portion for local programming
2.PEG fees
– except state franchising statutes – Wisconsin
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Why This is Happening Now?
• Some subscribers are disconnecting from cable
– Growth of DBS has been significant
– Over the top cable is having an impact
– Wireless devices
– Economy – high cost
• Millennial generation not dependant on cable
– Few college students subscribe to cable
– All college students have broadband service
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Basic Cable Subscribers
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1975-2011
SOURCE: SNL KAGAN/NCTA
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DBS Subscribers
2002 18,240,000
2003 20,360,000
2004 23,160,000
2005 26,120,000
2006 29,100,000
2007 30,600,000
2008 31,300,000
2009 32,600,000
2010 33,300,000
SOURCE: JULY 2012 FCC REPORT ON COMPETITION
DBS Impact on PEG
• No local or state franchise
• No franchise fees
• No PEG fees
• No local PEG content
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Basic Cable Phone Subs
Year /Subs
1998 .1
1999 .3
2000 1.0
2001 1.5
2002 2.5
2003 3.0
2004 3.8
Year/Subs
2005 5.9
2006 9.5
2007 14.9
2008 19.6
2009 22.2
2010 23.9
2011 25.3
in millions
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High Speed Internet Customers
(IN MILLIONS) 1997 - 2011
SOURCE: SNL KAGAN
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Cable Industry Revenue (,000s) Year Res Video Other Rev Total Rev 1996 $24,136 $2,984 $27,120
1997 $26,270 $3,532 $29,802
1998 $27,626 $6,152 $33,778
1999 $30,050 $7,341 $37,391
2000 $32,541 $9,575 $42,116
2001 $35,734 $9,743 $45,477
2002 $36,738 $11,160 $47,898
2003 $39,338 $15,056 $54,394
2004 $41,813 $18,212 $60,025
2005 $43,832 $21,846 $65,678
2006 $46,518 $25,354 $71,872
2007 $49,105 $29,719 $78,824
2008 $51,811 $34,470 $86,281
2009 $53,040 $36,861 $89,901
2010 $55,470 $38,310 $93,780
2011 $56,938 $40,660 $97,598
SOURCE: SNL KAGAN – NCTA website (in millions)
Finding New Revenue
• PEG organizations
• Seeking new sources of revenues
• Breaking free of years of self-imposed restraint
• PEG channels are not limited to noncommercial
use.
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Cable Act
• No prohibition on commercial speech on PEG
– If a municipality determines advertising is useful
to fund programming on local government at work
or other appropriate PEG programming, I find
nothing in the Cable Act that would prevent a
municipality from doing so.
• Time Warner Cable v. City of New York, 943 F.
Supp. 1357, 1387 (S.D.N.Y. 1996)
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FCC Guidance
• Federal law previously permitted a cable
operator to:
– prohibit the use of a PEG channel for
programming that contains:
• 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.
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FCC Guidance
• Cable operators may not control the content of
programming on public access channels
– Exception:
– Cable operator may refuse to transmit a public
access program which the cable operator
reasonably believes contains obscenity.
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Wisconsin State Law
• Section 66.0420(2)(s):
“PEG channel” means a channel designated for
noncommercial public, educational, or
governmental use.
• Line item veto by Governor in 2007.
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Franchise
• In Wisconsin:
– Since 2007 State issues the franchise
– No more local franchise
• If your city is not in Wisconsin
– Must carefully review local franchise with operator
for possible contractual restriction
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Local Code
• Many cities continue to have antiquated local
code provisions governing cable
• These cable ordinances often date back 20+ yrs
– Well before the 2007 Wisc. state franchising law
• These cable ordinances may contain
noncommercial PEG requirements
– May contain requirements that channel time must
be made available to residents “Free of Charge”
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Traditional Noncommercial Use
• Identification of financial supporters
– similar to PBS sponsorships
• Solicitation of financial support for
– charitable, educational or governmental purposes
• Programming offered by
– accredited, non-profit, educational institutions
– Telecourses
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Sponsorship
• One that finances a project or an event carried out
by another person or group
• Especially a business enterprise that pays for radio
or television programming in return for recognition
• i.e. advertising time
• http://www.pbs.org/insidepbs/guidelines/howto.html
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Qualified Sponsorship
Activities • This is any payment made by a person engaged in a trade or
business for which the person will receive no substantial
benefit other than the use or acknowledgment of the business
name, logo, or product lines in connection with the
organization's activities. “Use or acknowledgment” does not
include advertising the sponsor's products or services.
• For example, if, in return for receiving a sponsorship payment,
an organization promises to use the sponsor's name or logo
in acknowledging the sponsor's support for an educational or
fundraising event, the payment is a qualified sponsorship
payment and is not subject to the unrelated business income
tax.
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Advertising
• Generally refers to the sale or exchange of a
good or service or
– the solicitation of donations, remuneration or
barter
• Is a pastor asking for donations advertising?
• A political candidate asking for contributions?
• A plea for Save the Starving Children?
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Advertising • A payment is not a qualified sponsorship payment if, in
return, the organization advertises the sponsor's products or
services.
• Advertising includes:
– Messages containing qualitative or comparative language, price
information, or other indications of savings or value;
– Endorsements; and
– Inducements to purchase, sell, or use the products or services.
• The use of promotional logos or slogans that are an established
part of the sponsor's identity is not, by itself, advertising. In
addition, mere distribution or display of a sponsor's product by
the organization to the public at a sponsored event, whether for
free or for remuneration, is considered use or acknowledgment
of the product rather than advertising.
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New PEG Revenue Options
• Sponsorships
• Advertising
• Memberships
• Charging for channel time
• Resale of programming
• Studio/editing leasing
• Production services
• Other?
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Goldberg v. Cablevision Systems
• New York has a noncommercial state requirement
• PEG producer sought to sell:
– $39 duplicate tape or $5 transcript of program
• 2nd Circuit held
– Message would not render program “commercial”
– Primary role was to disseminate message
– Not to produce financial gain
A cable operator may refuse to cablecast on a public
access channel any programming that does not meet
the legal criteria for dissemination in that forum.
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Policies
• Written policy setting forth acceptable advertising
– Avoid viewpoint discrimination
• Should a government access channel accept
sponsorship/advertising funding from an entity:
– That bids on City contracts?
– Provides services to the City?
– Is currently lobbying controversial legislation under
the purview of the City?
– Is a candidate for City office?
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Nonprofit Fears
• Detract from the mission of the nonprofit
• Undermine the organization by introducing
“market forces”
• Be too difficult or complex to manage
• Put the nonprofit status at risk
• Impose “Unrelated Business Income Tax”
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Unrelated Business Income Tax
Unrelated business income is the income from
a trade or business regularly carried on by an
exempt organization and not substantially
related to the performance by the organization
of its exempt purpose or function.
Additional UBIT Info:
http://www.irs.gov/pub/irs-pdf/p598.pdf
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UBIT Analysis
1. Ascertain organization’s exempt purpose
– Articles of Organization
– Limited by 501(c)(3)
2. Is business activity substantially related to the
accomplishment of exempt purpose?
If not, then UBIT
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Consequences of UBIT
• The business income is taxable; and
• If the unrelated activity is a substantial part of
the organization’s activities, potential for loss
of exemption.
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How Can You Develop
Alternative Sources of Revenue
• Analyze services you can provide/sell
• Determine what might be saleable
• Conduct market research to understand the
profit potential
• Balance the promise of profit with the mission of
the organization
• Develop products or services
• Create a business plan
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Business Plan Details
• Business model and how it operates
• Competitive landscape and how the nonprofit can
compete effectively to sell goods/services
• Structure, roles and responsibilities of staffing for the
business
– Stay true to mission statement – discuss with city
• Pricing, promotion, packaging, and distribution of
the products/services
• Financial plan
• Day-to-day operational plan for the business
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Questions to Think About • Are we in a fairly stable financial situation?
• Do we have core assets/personnel that could be
transformed into saleable products or services?
• Is there a potential market with a willingness and ability to
pay for these products/services?
• Would the sale of these products/services be a
complement to, not a distraction from, our mission?
• Is our staff, board, council, elected officials
– for the most part, open to risk and experimentation?
• Do we have access to funders who could potentially
provide some startup capital for an earned income
venture?
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Processes to Undertake
1. Analyzing assets to determine potential
products/services to sell
2. Conducting market research to determine
competitors and consumers
3. Pilot testing a product/service
4. Creating a business plan including marketing,
staffing, financial model, risks and mitigations
5. Launching the business
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Thank You
Brian T. Grogan, Esq.
Moss & Barnett, A Professional Association 4800 Wells Fargo Center, 90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 877-5340 phone / (612) 877-5999 facsimile
E-mail: [email protected]
Website: www.moss-barnett.com