[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9648-9650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5869]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76

[CS Docket No. 96-40; FCC 96-84]


Telecommunications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Interim rule.

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SUMMARY: This Order establishes interim rules to implement Section 641 
of the Communications Act, including establishing the hours of the day 
when a significant number of children are likely to view sexually 
explicit adult programming or other indecent programming on any channel 
of the service of a multichannel video programming distributor 
primarily dedicated to sexually-oriented programming if such 
programming is not fully blocked or fully scrambled. Section 505 of the 
Telecommunications Act directs the Commission to establish these hours. 
In this Order, the Commission determines that the hours of 6 a.m. to 10 
p.m. are the hours when such programming may not be shown if not fully 
scrambled or fully blocked.

EFFECTIVE DATE: March 11, 1996.

FOR FURTHER INFORMATION, CONTACT: Meryl S. Icove, Cable Services 
Bureau, (202) 416-0800.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Order in CS Docket 
No. 96-40, FCC 96-84, adopted March 4, 1996 and released March 5, 1996. 
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) 587-3800, 2100 M Street, NW., Suite 140, 
Washington, DC 20017.

Synopsis of Order

    1. On February 8, 1996, the Telecommunications Act of 1996 (``1996 
Act''), Pub. L. No. 104-104, 110 Stat. 56 (1996), was enacted. Section 
505 of the 1996 Act amends the Communications Act by adding a new 
Section 641, entitled ``Scrambling of Sexually Explicit Adult Video 
Service 

[[Page 9649]]
Programming.'' Section 641(a) requires that multichannel video 
programming distributors (``MVPDs'') fully scramble or fully block 
sexually explicit adult programming or other indecent programming on 
any channel of its service primarily dedicated to sexually-oriented 
programming so that a nonsubscriber does not receive such programming. 
Section 641(b) provides that, until the MVPD fully scrambles such 
programming, it may not provide such programming during the hours of 
the day when a significant number of children are likely to view such 
programming. Section 641(b) further requires that the Commission 
determine those hours. Section 641(c) also provides a definition of 
``scramble:'' ``to rearrange the content of the signal of the 
programming so that the programming cannot be viewed or heard in an 
understandable manner.'' These provisions take effect 30 days after the 
date of enactment of the 1996 Act, i.e., March 9, 1996. In this Order 
the Commission adopts a rule incorporating Section 641(a). The 
Commission also establishes an interim rule implementing Section 
641(b), providing that the programming described in subsection (a) may 
not be provided between the hours of 6 a.m. and 10 p.m. if not fully 
scrambled or fully blocked. The NPRM adopted with this Order on March 
4, 1996, requests comment on whether the interim rule should be adopted 
as a final rule. Finally, the NPRM requests comment on other issues 
regarding implementation and enforcement of these rules.
    2. We herein establish a rule incorporating the self-effectuating 
language of Section 641(a). We are adding this rule without providing 
prior public notice and comment because the rule simply incorporates a 
provision of the 1996 Act. The Commission's action involves no 
discretion. Accordingly, notice and comment would serve no purpose and 
is thus unnecessary, and this action falls within the ``good cause'' 
exception of the Administrative Procedure Act (``APA''). See 5 U.S.C. 
553(b)(B).
    3. We establish an interim rule implementing Section 641(b) 
regarding the hours during which MVPDs may not provide sexually 
explicit adult programming or other indecent programming on any channel 
primarily dedicated to sexually-oriented programming if it is not fully 
scrambled or fully blocked. We find that good cause exists to establish 
an interim rule without notice and comment because Section 641 takes 
effect 30 days after enactment of the 1996 Act, making it impracticable 
to engage in notice and comment procedures.
    4. This interim rule is based on a closely analogous, existing 
Commission rule. The Commission's current rule regarding broadcast 
indecency prohibits the licensee of a radio or television broadcast 
station from broadcasting between 6 a.m. and 10 p.m. any material which 
is indecent. 47 CFR 73.3999. This rule is based on an extensive 
administrative record and judicial review of the regulation of indecent 
programming. The United States Court of Appeals for the District of 
Columbia Circuit upheld a 10 p.m. to 6 a.m. safe harbor in Action for 
Children's Television v. FCC, and the United States Supreme Court 
denied certiorari. 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. 
denied, 64 USLW 3465 (Jan. 8, 1996). We are aware of no relevant 
differences here that would justify a different interim rule. 
Accordingly, based upon that closely related proceeding, we adopt an 
interim rule requiring that, until an MVPD complies with the 
scrambling/blocking requirement in new Section 641(a), the MVPD may not 
provide sexually explicit adult programming or other programming that 
is indecent on any channel of its service primarily dedicated to 
sexually-oriented programming between the hours of 6 a.m. and 10 p.m.
    5. We define ``indecent'' programming here on an interim basis the 
same as in other video programming contexts: any programming that 
describes or depicts sexual or excretory activities or organs in a 
patently offensive manner as measured by contemporary community 
standards for the cable or other MVPD medium. See Infinity Broadcasting 
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987); 47 CFR 
Secs. 76.701(g). We believe it is clear that the term ``sexually 
explicit adult programming'' in Section 641(a) is merely a subset of 
the term ``programming that is indecent.'' To the extent that this 
language could be viewed as ambiguous, we interpret it to include only 
indecent programming. As to the applicability of Section 641(a) only to 
channels ``primarily dedicated to sexually-oriented programming,'' we 
believe the statute is clear regarding what channels Section 641(a) 
applies to, but unless and until we adopt a definition of that term we 
will rely on the good faith judgment of MVPDs regarding its definition. 
We note that Section 641 only requires that MVPDs fully scramble or 
otherwise fully block the video and audio portion of channels primarily 
dedicated to sexually-oriented programming ``[i]n providing sexually 
explicit adult programming or other programming that is indecent.'' 
Thus, we interpret the provision as not requiring the scrambling of 
programming that is not indecent even if provided on a channel 
primarily dedicated to sexually-oriented programming.
    6. To the extent that compliance with Section 641 conflicts with 
any Commission rules requiring cable operators to give advance written 
notice to subscribers or local franchising authorities of certain 
changes in their service, those rules are waived. See 47 CFR 
Secs. 76.309(c)(3)(i)(B), 76.964. To the extent that compliance with 
Section 641 conflicts with any state or local notice requirements, 
those requirements are preempted by Section 641 itself, which requires 
that MVPDs make the programming changes within 30 days of the Section's 
enactment. Cable operators should, however, give notice as soon as is 
reasonably practicable. We understand that in some instances such 
notice may not be given until after the change has been made.

Ordering Clauses

    7. It is ordered that, pursuant to Sections 4(i) and 641 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section 
505 of the Telecommunications Act of 1996, that the Commission's rules 
ARE AMENDED as set forth below. These rules are effective upon 
publication in the Federal Register. We find good cause for making 
these rules effective upon publication in the Federal Register because 
Section 641 becomes effective 30 days after enactment of the 
Telecommunications Act of 1996.
    8. It is further ordered that 47 CFR 76.309(c)(3)(i)(B) IS WAIVED 
to the extent indicated herein.
    9. It is further ordered that 47 CFR Sec. 76.964 IS WAIVED to the 
extent indicated herein.

Lists of Subjects in 47 CFR Part 76

    Cable television.

Amendatory Text

    Part 76 of Title 47 of the Code of Federal Regulations is amended 
to read as follows:

PART 76--[AMENDED]

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

    Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat. as 
amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 1101; 47 
U.S.C. Secs. 152, 153, 154, 301, 303, 307, 308, 309, 532, 535, 542, 
543, 552 as amended, 106 Stat. 1460.

    2. A new Sec. 76.227 is added to Subpart G to read as follows: 
    
[[Page 9650]]



Sec. 76.227  Blocking of indecent sexually-oriented programming 
channels.

    (a) In providing sexually explicit adult programming or other 
programming that is indecent on any channel of its service primarily 
dedicated to sexually-oriented programming, a multichannel video 
programming distributor shall fully scramble or otherwise fully block 
the video and audio portion of such channel so that one not a 
subscriber to such channel or programming does not receive it.
    (b) Until a multichannel video programming distributor complies 
with the requirement set forth in paragraph (a) of this section, the 
multichannel video programming distributor shall not provide the 
programming referred to in paragraph (a) of this section between the 
hours of 6 a.m. and 10 p.m.
    (c) Scramble means to rearrange the content of the signal of the 
programming so that the programming cannot be viewed or heard in an 
understandable manner.
    (d) Sexually explicit adult programming or other programming that 
is indecent means any programming that describes or depicts sexual or 
excretory activities or organs in a patently offensive manner as 
measured by contemporary community standards for the cable or other 
multichannel video programming distribution medium.

Federal Communications Commission.
William F. Caton,


Acting Secretary.

[FR Doc. 96-5869 Filed 3-8-96; 8:45 am]
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