Expanding the Scarcity Rationale: The Constitutionality of Public Access Requirements in Cable Franchise Agreements

This Note argues that public access requirements should be upheld because they are constitutional and because they further the goals of the first amendment. As background for the debate over public access, Part I provides a brief description of cable television’s history and regulation and discusses the case law concerning public access requirements. Part II examines the nature of the first amendment interests at stake in public access requirements. Before resolving the question of which interests should be protected, Part III argues that an expanded scarcity rationale should be used to justify cable regulation under the first amendment. Part IV asserts that public access requirements are constitutional under the expanded scarcity rationale and that they further the goals of the rationale. Finally, this Part emphasizes the effectiveness of public access channels in promoting the goals of the first amendment and the limited nature of the intrusion on editorial discretion posed by public access requirements. This Note concludes that public access requirements are not only constitutional, but that they offer a sensible compromise of the first amendment interests of both cable operators and the public.