A Round "PEG" for a Round Hole: Advocating for the Town of Oyster Bay's Public Access Channel Restrictions

I. INTRODUCTION A new version of an old trend is rising in the advertising world. Often called "alternative" or "guerilla" marketing, the trend finds marketers giving expensive items from expensive product lines to trendsetting college students, potentially hot showbiz players, and young nightclub-goers with the understanding that each will use and talk up the products. (1) Further, drug companies frequently pay celebrities to tout pharmaceuticals during their public appearances. (2) Other examples include extensive product placements in movies and on television programs, and sponsorship of events and concerts. (3) Such alternative marketing only represents a tiny fraction of the $236 billion spent on advertising in America, but strong evidence shows that the money spent on these alternative marketing strategies is growing rapidly. (4) The recent spike in the marriage of content and advertisements is a response to machines like TiVo, (5) which allow users to record many hours of television programming while skipping commercials. (6) Network executives fear that the use of such devices bodes very ill for future advertising revenues, from which networks draw a bulk of their profits. (7) Jamie Kellner, CEO of Turner Broadcasting System, spoke of his concerns at the Association of National Advertisers' 2002 national conference, stating that "the [television] business cannot exist as its current model is today unless consumers are willing to give time for [advertisements]." (8) Kellner further asserted his belief that "advertising has driven this country. Without advertising, we wall damage this country." (9) These fears, echoed by other network executives, are powerful, but may be either premature (10) or altogether unwarranted. (11) Regardless, these same executives have time and time again adopted the alternative or guerilla marketing strategies outlined above. These activities have possible implications far beyond the executives' individual networks. The more advertisers fear that their messages will not reach the intended audience of television viewers, the more that advertisers will likely seek other outlets for these messages. These other outlets could include forums with obvious dangers attached, such as a larger proliferation of overly distracting advertisements on highways, including on vehicles. Advertising on some alternative outlets could pose more subtle dangers. One of these possible dangerous alternative outlets is public access television, which receives little protection from corporate advertisers under the Cable Communications Policy Act of 1984 ("CCPA"). (12) Under the CCPA, municipalities are free to adopt their own protective contractual measures with cable operators in their cable franchise agreements. Many municipalities, including New York City, deny the right to place advertisements on airwaves reserved for public access. However, these contractual terms are not mandated by the CCPA. This lack of protection is striking since, as argued, infra, corporate advertising often negatively distorts media content. Corporate advertising on public access channels could have alarming implications for those wishing to utilize their only meaningful access to public airwaves. This Note urges municipalities, cable franchisees, and courts to adopt the same protections afforded to the public by the Oyster Bay, New York, cable franchise agreement. Section II outlines the relevant provisions of the CCPA, the New York state regulations regarding cable franchise agreements, the Cable Franchise Agreement between the Oyster Bay, New York, and Cablevision Systems Corporation, and the recent Second Circuit Court of Appeals decision in Goldberg v. Cablevision Systems Corporation. Section III of this Note argues that corporate advertising has historically had several adverse effects on the content of television programming. Section IV further describes the recent upswing in guerilla marketing tactics. …