When the rich, the influential, and the powerful all wrap themselves in the First Amendment, it's time to wonder what that amendment is really supposed to protect these days - speech or profits. Consider the battle of media titans over the effort to find space for Rupert Murdoch's Fox News Channel on the Time Warner Manhattan cable system. Put aside the massive egos, petulant vendettas, public tantrums, and sanctimonious statements by Fox News, Time Warner, and New York City Mayor Rudolph Giuliani over the unfortunate refusal of the nation's second-biggest cable operator to make room for Murdoch's new news channel. What this fight really demonstrates is the terrible inadequacy of the nation's cable policies and the degradation of the First Amendment. Cable is a "First Amendment horror story," said former FCC general counsel Henry Geller. He's right.
 To induce Time Warner to carry Fox News on its cable systems nationwide, Murdoch first offered it a financial stake in his new news channel, a typical pay-off to major cable operators, which shamelessly favor the cable services in which they hold a financial interest. In Manhattan, for example, Time Warner owns all or part of almost 40 percent of the commercial cable networks that it selected for its system, among them HBO, CNN, TNT, Comedy Central, and some Pay-Per-View channels. After Time Warner obtained a 20 percent interest in CNN's parent company, Turner Broadcasting, it refused to allow any other cable news network to compete with CNN on its cable systems. The nation's biggest cable operator, TCI, which also has a major financial stake in CNN, likewise shut the gate to any competing cable news service. As a result, CNN held a monopoly in cable and the American people were denied access to any other national news channel. I learned firsthand how the system works back in 1985, when I was at NBC News. We tried to launch a competing twenty-four-hour cable news service but were shut out the moment Turner sold an interest in his company to Time Warner, TCI, and other big cable franchise holders.

 The landscape changed in 1996, when Time Warner and Turner Broadcasting decided to merge to form the world's biggest multimedia conglomerate. The Federal Trade Commission issued a consent decree requiring the expanded company to make available to at least 50 percent of its cable subscribers a second twenty-four-hour news channel, one in which it holds no financial interest. According to Fox, Time Warner chose MSNBC, GE's new cable news channel, over Fox News because Ted Turner, now Time Warner's vice chairman and a major stockholder, hates Murdoch. Turner has called Murdoch a "disgrace to journalism" and worse, promising to "squish him like a bug." In turn, Murdoch's Fox Television cameras blacked out Turner, who owns the pennant-winning Atlanta Braves, during the first three World Series games and Murdoch's New York Post suggested that Turner is "veering dangerously toward insanity." The Post also dropped its CNN program listings for a time, and continues to cover the cable battle like a sycophantic house organ rather than an honest newspaper.

 To develop his alternative to the supposedly liberal CNN, Murdoch hired Roger Ailes, the former political campaign guru. When Ailes learned that Time Warner had no room for Fox News, he asked his friend Mayor Giuliani to intervene. Murdoch and his minions also called in their own political chits, recruiting New York State's top Republican guns, Governor George Pataki, Senator Alfonse D'Amato, and Attorney General Dennis Vacco. Pataki and D'Amato made a few phone calls to Time Warner, to no avail. But the actions of Vacco and Giuliani provide quite a different and, indeed, truly disgraceful story. A few days after attending a Murdoch-hosted cocktail party celebrating the launch of Fox News, Attorney General Vacco had his anti-trust department serve a belated but well-publicized twenty-page subpoena on Time Warner, seeking numerous confidential business documents concerning its merger with Turner. The state subpoena came after the FTC had already approved the merger, which had first been announced more than a year earlier.

 Mayor Giuliani's response was even more dismaying. The city pulled out all stops to coerce - blackmail is not too strong a word - Time Warner into carrying the Fox News Channel. At Giuliani's bidding, city attorneys threatened to revoke Time Warner's Manhattan cable franchise, refusing to approve its transfer to the newly merged company after having given assurances that the merger would be no problem. And the city's Franchise and Concession Review Committee indicated it would hold renewal of the cable franchise in 1998 hostage to Time Warner's grant-ing Fox News a cable channel in Manhattan. To make space for Fox News, Deputy Mayor Fran Reiter proposed that Time Warner simply bounce the History or Discovery cable channel over to one of the city's so-called PEG channels, the public interest channels required by law to be dedicated to public, educational, and governmental use. When Time Warner refused, it was then asked to grant a waiver permitting the city to put Fox News on one of the PEG channels instead. News, Deputy Mayor Reiter claimed, is by nature educational. When Time Warner said no to that, too, the city took the position that under the First Amendment, it could do anything it wished with its PEG channels, including putting Fox News on without commercials, or even with commercials, whether Time Warner liked it or not. Without bothering to hold hearings, the city announced that it would give Fox News a PEG channel, even though thirty other cable program services had been waiting in line far longer than Fox News for additional cable capacity to open up. Time Warner claimed the city was depriving it of its First Amendment right to program its cable channels without government interference. Fox News claimed that Time Warner was infringing on its First Amendment rights by excluding it from Manhattan.

 In yet another odd development, Michael R. Bloomberg, founder of Bloomberg Information Television, claimed his First Amendment rights were being violated, too. "Given that New York is the capital of the financial universe," Bloomberg said, his business news service deserved the same treatment as Murdoch. Seeing the chance to have Bloomberg act as "the beard" in the city's illicit affair with Murdoch, the mayor announced that Bloomberg, too, could have a PEG channel.

 A sharply worded temporary restraining order by Federal Judge Denise Cote stopped the city in its tracks. "This case concerns the power of a city to influence, control, and even coerce the programming decisions of an operator of a cable television system," Judge Cote said. "It therefore goes to the heart of First Amendment concerns." She rebuked the mayor for his brazen efforts to help a political supporter and for abusing his power.

 What can be done to improve the nation's cable access policy and end such First Amendment horror stories? First, stop the vertical integration that enables monopoly cable gatekeepers to gain an unfair competitive edge for their own programming interests; prohibit them from owning any national cable program networks. Second, require that at least some of the money cable operators pay for their franchises go to support the woefully underutilized, poorly used public service PEG channels. (As of 1990, only 16 percent of all cable systems nationwide had any public access channels, only 13 percent had any educational access, and only 11 percent had government access.) Third, instead of the federal government giving away unused, publicly owned telecommunications spectrum and valuable telecommunications licenses, it should lease them out or auction them off to commercial operators. Then, we should use some of the tens of billions of dollars from those lucrative leases and auctions as a public dividend, to interconnect the nation's homes, schools, libraries, and museums in a great new local and national interactive education and information telecommunications superhighway system. That way, all citizens will gain access to quality children's fare, continuing education, job retraining, civic infortion, electronic town meetings, free time for candidates, and other vital public services that the Time Warners, Rupert Murdochs, Bloombergs, and city governments do not supply.

 It's time to stop using the First Amendment as a fig leaf for the rich and powerful and restore it to its proper role as protector of unpopular speech. In most hard-fought contests, it's a shame someone has to lose; in this one, it's too bad any of them has to win.

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