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First Amendment battle brewing over local control of cable TV

Minority coverage. Children's shows. Televised town meetings and high school soccer matches. Dramatic series produced by college students or city theater groups.

Boosters of cable television hope that its 100-channel capacity will provide a smorgasbord of programming not normally available on the broadcast networks. But that may depend on how Congress and the courts define the role of the cable industry. And there are some complex First Amendment questions involved.

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During the awarding of cable franchises, municipalities have been requiring cable operators to set aside some channels for free public access and to furnish equipment and training for those who wish to use the channels.

Such requirements are fair because ''nobody forces cable companies to sign a contract'' for a franchise, says Morris Tarshis, director of New York City's cable franchise bureau.

But cable officials say that their constitutional right to free speech is being infringed upon, and they're asking the Supreme Court to rule on the dispute.

Cable companies argue that they are ''electronic publishers.'' The government can't force newspapers and magazines to allocate some of their pages for ''public access,'' cable officials note, and this publishing freedom is guaranteed by the Constitution. Cable owners, they conclude, should have the same free-speech rights.

But opponents argue that since cable companies have virtual monopoly control over their markets, they should be required to give up some of their many channels for public use.

Leading media attorneys, communications law professors, and government regulators came to differing conclusions at a recent two-day New York Law School conference. The discussions took place as Congress ponders legislation that would substitute federal controls for local controls on the cable industry.

Mr. Tarshis said stripping municipalities of their right to regulate cable would be ''disastrous'' for the public, because each community has its own needs.

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Les Brown, an editor with the telecommunications magazine Channels, said that the cable operator's First Amendment rights ''are totally served with just one channel,'' and that ''he shouldn't have full First Amendment rights over all those channels.''

Cable operators do not deserve the freedoms of the print media, Mr. Brown said, because they have monopoly control over their medium - while by contrast, anyone can start a print publication, even if it is only mimeographed.

While it would be impractical to strip newspapers and magazines of the freedoms they have enjoyed for nearly 200 years, cable could be regulated right from the start, said Douglas Ginsburg, a Harvard Law School professor temporarily with the Justice Department's antitrust division.

Lawyers representing cable companies complain that critics are trying to redefine the industry. And they say First Amendment distinctions between newspapers and cable are being created when none exist.

Brenda Fox, general counsel and vice-president of the National Cable Television Association, said that Mr. Brown and other access advocates simply want to ''tag on'' to the system in which cable operators have invested a great deal of money. Responding to the claim that cable has monopoly control, she said that cable has competition from such emerging technologies as videocassettes, low-power television, and direct-broadcast satellites. She likened that to a mimeographed publication.

James Goodale, a lawyer who has represented cable operators as well as the New York Times, said that it is foolish and futile to make First Amendment distinctions among the different media.

Not all cable operators, however, voice opposition to providing access channels. Cablevision Systems president Charles F. Dolan says he sees access as an integral part of cable programming. His franchises around the country average 50 to 60 access programming hours a week, he says. He sees the TV set eventually becoming a kind of library to which ''you go to pursue your own interest, rather than seeing what others think you want.''

The US Supreme Court has not yet directly considered cable operators' claim to full First Amendment rights. But the cable industry's claim that it is an electronic publisher entitled to the freedoms of print publishers is not a trivial argument, the high court has said. It is expected to address the question head-on soon.

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