Cable Television Consumer Protection and Competition Act of 1992

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MM Docket No. 92-258; FCC 97-156]

Cable Television Consumer Protection and Competition Act of 1992

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This Order amends the Commission's rules regarding indecent

programming on leased access and public, educational and governmental

access channels. This action is necessary to conform the rules to the

decision of the Supreme Court in Denver Area Educational

Telecommunications Consortium, Inc. v. FCC. The order is intended to

amend the Commission's rules to conform them to the Court's decision.

DATES: These rules become effective upon OMB approval of the

information collection requirements. The Commission will publish a

document in the Federal Register confirming the effective date and

notifying parties that these rules have become effective. Written

comments by the public on the modified information collections are due

July 22, 1997.

ADDRESSES: A copy of any comments on the information collections

contained herein should be submitted to Judy Boley, Federal

Communications Commission, Room 234, 1919 M Street, N.W., Washington,

DC 20554, or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Meryl S. Icove, Cable Services Bureau,

(202) 418-7200. For additional information concerning the information

collections contained in this rulemaking, contact Judy Boley at 202-

418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Order in MM Docket

No. 92-258, FCC 97-156, adopted on May 6, 1997, and released on May 7,

1997. The complete text of this Order is available for inspection and

copying during normal business hours in the FCC Reference Center (room

239), 1919 M Street, NW., Washington, DC, and also may be purchased

from the Commission's copy contractor, International Transcription

Services, Inc. (``ITS Inc.'') at (202) 857-3800, 2100 M Street, NW.,

Suite 140, Washington, DC 20017.

Paperwork Reduction Act

This Memorandum Opinion and Order contains modified information

collections. The Commission, as part of its continuing effort to reduce

paperwork burdens, invites the general public to comment on the

information collections contained in this Memorandum Opinion and Order,

as required by the Paperwork Reduction Act of 1995. Public and agency

comments are due 60 days from date of publication of this Memorandum

Opinion and Order in the Federal Register. Comments should address: (a)

Whether the proposed collection of information is necessary for the

proper performance of the functions of the Commission, including

whether the information shall have practical utility; (b) the accuracy

of the Commission's burden estimates; (c) ways to enhance the quality,

utility, and clarity of the information collected; and (d) ways to

minimize the burden of the collection of information on the

respondents, including the use of automated collection techniques or

other forms of information technology.

OMB Approval Number: 3060-0544.

Title: Commercial Leased Access Channels.

Type of Review: Revision to an existing collection.

Respondents: Businesses or other for-profit entities.

Number of Respondents: 100.

Estimated Time Per Response: 8 hours per response.

Total Annual Burden: 800 hours. Section 76.701(a) states that a

cable operator may adopt and enforce prospectively a written and

published policy of prohibiting programming which, it reasonably

believes, describes or depicts sexual or excretory activities or organs

in a patently offensive manner as measured by contemporary community

standards. We estimate that an additional 100 cable system operators

each year will choose to adopt a written and published policy of

prohibiting offensive programming on leased access channels. The

average burden to each respondent to write this policy is estimated to

be 8 hours. 100 respondents x 8 hours=800 hours.

Estimated Cost Per Respondent: There are no measurable costs

associated with this information collection.

Needs and Uses: Permitting cable operators to adopt policies

regarding offensive programming gives operators alternatives to banning

broadcasts; for example, by adopting policies to rearrange broadcast

times so as to accommodate the desires of adult audiences while

lessening the risks of harm to children.

Synopsis of Order

1. As part of the Cable Television Consumer Protection and

Competition Act of 1992 (``1992 Cable Act''), Congress enacted Section

10 in order to protect children from indecent programming on leased

access and public, educational and governmental (``PEG'') access

channels. The Commission thereafter established rules to implement

Section 10. As required by the statute, these rules provided that cable

operators could prohibit such programming on PEG access channels. Also

as required by Section 10, the rules provided that, for leased access

channels, cable operators had to either enforce a policy prohibiting

such programming or segregate and block any programming that was not

prohibited. In Denver Area Educational Telecommunications Consortium,

Inc. v. FCC (``Denver Consortium''), the Court addressed the

constitutionality of Section 10. The Supreme Court found that the PEG

access channel provision permitting the refusal to transmit indecency

and the leased access channel provision requiring segregation and

blocking were unconstitutional. 116 S. Ct. 2374 (1996). In this

Memorandum Opinion and Order, we adopt rule changes responsive to the

Supreme Court's decision.

2. The statutory provisions on leased access are found in section

612 of the Communications Act. Section 10(a) of the 1992 Cable Act

amended Section 612(h) of the Communications Act, adding language to

``permit a cable operator to enforce prospectively a written and

published policy of prohibiting programming that the cable operator

reasonably believes describes or depicts sexual or excretory activities

or organs in a patently offensive manner as measured by contemporary

community standards'' on commercial leased access channels on their

systems. Section 10(b) added a new subsection (j) to section 612.

Section 10(b) required the Commission to adopt regulations that are

designed to restrict access of children to indecent programming on

leased access channels (that is not voluntarily prohibited under

Section 10(a)) by requiring cable operators to place indecent

programming on a ``blocked'' leased access channel. Section 10(c)

required the Commission to adopt regulations to enable cable operators

to prohibit use of channel capacity on the PEG access channels for

programming which contains obscene material, sexually explicit conduct,

or material soliciting or promoting unlawful conduct. Section 10(d) of

the 1992 Cable Act amended Section 638 of

[[Page 28372]]

the Communications Act. Section 76.701 and Sec. 76.702 of the

Commission's rules implement Section 10. See 58 FR 7990, Feb. 11, 1993;

58 FR 19623, April 15, 1993. These rules were stayed after the initial

decision in Alliance for Community Media v. FCC (``Alliance'') finding

them unconstitutional and that stay has been continued in force pending

Supreme Court review. Alliance for Community Media v. FCC, 10 F.3d 812

(D.C. Cir. 1993), vacated, 15 F.3d 186 (D.C. Cir. 1994), reh'g en banc,

56 F.3d 105 (D.C. Cir. 1995), aff'd in part and rev'd in part, Denver

Consortium, 116 S. Ct. 2374 (1996).

3. In the Telecommunications Act of 1996 (``1996 Act''), Congress

further amended Sections 611 and 612 of the Communications Act. Section

611(e) and Section 612(c)(2) generally provide that a cable operator

may not exercise any editorial control over the content on PEG access

and leased access channels. The 1996 Act added language to except from

this ban on editorial discretion programming which contains obscenity,

indecency, or nudity. In Order and Notice of Proposed Rulemaking in CS

Docket No. 96-85--Implementation of Cable Act Reform Provisions of the

Telecommunications Act of 1996 (``Cable Act Reform Order''), the

Commission amended Section 76.701 and Section 76.702 of its rules to

implement the 1996 Act. 61 FR 19013, April 30, 1996, 11 FCC Rcd 5937,

5959-5961 Paras. 61-67 (1996).

4. As a result of the Court's decision that Section 10(b) is

unconstitutional, we will delete those parts of Sec. 76.701 which

implemented the requirement that cable operators not adopting a policy

of prohibiting indecent programming on leased access channels must

segregate and block such programming. We note, however, that a cable

operator voluntarily may segregate, block, and time channel indecent

leased access programming under Section 10(a). As we stated when

initially implementing section 10(a), ``we believe that cable operators

with policies prohibiting indecent programming have, under section

10(a), the discretion to block any such programming, rather than

banning it completely, and moreover, they may provide such programming

on blocked channels during time periods of their own choosing.'' 58 FR

7992, 8 FCC Rcd at 1005. Further, the Court in Denver Consortium stated

that Section 10(a)'s ``permissive nature brings with it a flexibility

that allows cable operators, for example, not to ban broadcasts, but,

say, to rearrange broadcast times, better to fit the desires of adult

audiences while lessening the risks of harm to children.'' 116 S. Ct.

at 2387, citing First Report and Order, 58 FR 7991, 8 FCC Rcd. at 1003

(interpreting the 1992 Cable Act's provisions to allow cable operators

broad discretion over what to do with offensive materials). It is also

the case that, under Section 10(a), cable operators may prohibit some

indecent programming, but not all. In the First Report and Order, the

Commission, noting that some cable operators suggested that they have

the discretion to prohibit some, but not necessarily all indecent

programming under section 10(a) as long as they block the rest under

section 10(b), stated that ``[g]iven the wide discretion Congress

afforded cable operators under this section, we see no reason to

dispute this interpretation.'' 58 FR 7991, 8 FCC Rcd at 1003.

5. Finally, as a result of the Court's decision that section 10(c)

is unconstitutional, we will amend Sec. 76.702. Insofar as the 1996 Act

grants to the cable operator the right to refuse to transmit indecent

public access programming, it apparently conflicts with the Court's

decision in Denver Consortium that cable operators may not prohibit

``the transmission of `patently offensive' sex-related materials'' over

public access channels. 116 S. Ct. at 2382.

6. Paperwork Reduction Act of 1995 Analysis. The requirements

adopted in this Order have been analyzed with respect to the Paperwork

Reduction Act of 1995 (the ``1995 Act'') and found to impose modified

information collection requirements on the public. Implementation of

any modified requirement will be subject to approval by the Office of

Management and Budget (``OMB'') as prescribed by the 1995 Act. The

Commission, as part of its continuing effort to reduce paperwork

burdens, invites the general public and other Federal agencies to

comment on the information collections contained in this Order as

required by the 1995 Act. 1 Comments should address: (1)

Whether the proposed collection of information is necessary for the

proper performance of the functions of the Commission, including

whether the information shall have practical utility; (2) the accuracy

of the Commission's burden estimates; (3) ways to enhance the quality,

utility, and clarity of the information collected; and (4) ways to

minimize the burden of the collection of information on the

respondents, including the use of automated collection techniques or

other forms of information technology.

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\1\ Public Law 104-13.

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7. Written comments by the public on the modified information

collections are due on or before 60 days after publication of the Order

in the Federal Register. A copy of any comments on the information

collections contained herein should be submitted to Dorothy Conway,

Federal Communications Commission, Room 234, 1919 M Street, N.W.,

Washington, DC 20554, or via the Internet to [email protected] For

additional information concerning the information collections contained

herein contact Judy Boley at 202-418-0217, or via the Internet at

[email protected].

8. Regulatory Flexibility Act Analysis. Pursuant to Section 603 of

the Regulatory Flexibility Act, 5 U.S.C. Sec. 603, an Initial

Regulatory Flexibility Analysis (``IRFA'') was incorporated in the

Notice of Proposed Rulemaking in MM Docket 92-258. 57 FR 54207,

November 17, 1992, 7 FCC Rcd 7709, 7712 (1992). Comments concerning the

IRFA were addressed in previous orders. 58 FR 7990, 7992, 8 FCC Rcd at

1010-11; 58 FR 19623, 19626, 8 FCC Rcd at 2643. As discussed above, in

this Memorandum Opinion and Order we are amending our rules to conform

to the Supreme Court's Denver Consortium decision. Under the rule

changes adopted here, a cable operator will no longer be required to

segregate and block indecent programming on leased access channels.

Further, a cable operator will not be permitted to refuse to transmit

indecent PEG access programming. There will be no cost to cable

operators as a result of these rule changes, and therefore the

amendments will not have a significant economic impact on cable

operators. Therefore, we do not believe that the amendments adopted

herein will have a significant economic impact on a substantial number

of small entities, and no further regulatory flexibility analysis is

required. 5 U.S.C. 605(b). A copy of this certification will be sent to

the Chief Counsel for Advocacy of the Small Business Administration.

9. Accordingly, it is Ordered that, pursuant to the authority

contained in Sections 4(i) and 4(j) and 303 of the Communications Act

of 1934, as amended, 47 CFR Secs. 154(i), 154(j), 303, and the Cable

Television Consumer Protection and Competition Act of 1992, Public Law

102-385, Part 76 of the Commission Rules, 47 CFR Part 76, is amended as

set forth below.

10. It is Further Ordered that the rule provisions set forth below

shall become effective upon approval by the Office of Management and

Budget of the modified information collection requirements.

[[Page 28373]]

Lists of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 76 of Title 47 of the Code of Federal Regulations is amended

as follows:

PART 76--CABLE TELEVISION SERVICE

1. The authority citation for Part 76 continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,

307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,

534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558,

560, 561, 571, 572, 573.

Sec. 76.701 [Revised]

2. Section 76.701 is revised to read as follows:

Sec. 76.701 Leased access channels.

(a) Notwithstanding 47 U.S.C. 532(b)(2) (Communications Act of

1934, as amended, section 612), a cable operator, in accordance with 47

U.S.C. 532(h) (Cable Consumer Protection and Competition Act of 1992,

section 10(a)), may adopt and enforce prospectively a written and

published policy of prohibiting programming which, it reasonably

believes, describes or depicts sexual or excretory activities or organs

in a patently offensive manner as measured by contemporary community

standards.

(b) A cable operator may refuse to transmit any leased access

program or portion of a leased access program that the operator

reasonably believes contains obscenity, indecency or nudity.

Sec. 76.702 [Revised]

3. Section 76.702 is revised to read as follows:

Sec. 76.702 Public access.

A cable operator may refuse to transmit any public access program

or portion of a public access program that the operator reasonably

believes contains obscenity.

[FR Doc. 97-13624 Filed 5-22-97; 8:45 am]

BILLING CODE 6712-01-P