[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9671-9673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5870]



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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: Proposed rule.

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SUMMARY: The Commission is issuing this Notice of Proposed Rulemaking 
in order to solicit comment on the proper 

[[Page 9672]]
implementation of Section 641 of the Communications Act. This NPRM is 
necessary to fulfill the statutory requirement in Section 505 of the 
Telecommunications Act of 1996 that the Commission determine 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. This 
proceeding will permit the Commission to issue final rules.

DATES: Comments are due on April 26, 1996. Replies are due on May 24, 
1996.

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

SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed 
Rulemaking in CS Docket No. 96-40, FCC 96-84, adopted March 4, 1996 and 
released March 5, 1996. The complete text of this Notice of Proposed 
Rulemaking 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 Notice of Proposed Rulemaking

    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 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 an Order 
adopted with this NPRM on March 4, 1996, the Commission adopted a rule 
incorporating Section 641(a). We also established 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. This NPRM requests 
comment on whether the interim rule should be adopted as a final rule. 
Finally, we request comment on other issues regarding implementation 
and enforcement of these rules.
    2. We propose to adopt a final rule establishing the hours between 
6 a.m. and 10 p.m. as the hours when sexually explicit adult 
programming or other programming that is indecent on any channel 
primarily dedicated to sexually-oriented programming is prohibited if 
not fully scrambled for nonsubscribers. We tentatively conclude there 
are no relevant differences between broadcast and nonbroadcast delivery 
of programming that justify adoption of a different rule. Commenters on 
this issue are asked to provide specific data in support of any 
assertions regarding the hours when children are likely to be viewing 
this programming.
    3. We note that the definition of indecent programming in the video 
programming context is well established. The Commission defines 
broadcast indecency as ``language or material that, in context, depicts 
or describes, in terms patently offensive as measured by contemporary 
community standards for the broadcast medium, sexual or excretory 
activities or organs.'' Infinity Broadcasting Corporation of 
Pennsylvania, 2 FCC Rcd 2705 (1987). The Commission has also defined 
indecency with respect to the use of channel capacity on cable systems 
for leased access and public, educational and governmental access--
indecent programming is 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 medium. 
See 47 CFR 76.701(g), 76.702. We propose to use the same definition for 
purposes of this statutory provision. Because we read the term 
``sexually explicit adult programming'' to be a subset of indecent 
programming, we do not believe that further definition is necessary. As 
noted above, we believe the statute is clear regarding the channels to 
which Section 641(a) applies, however, to the extent parties disagree, 
they may comment on the appropriate definition of ``channel * * * 
primarily dedicated to sexually oriented programming.''
    4. Finally, we seek comment on any other issues relevant to proper 
implementation of Section 641. In particular, with respect to the 
requirement to ``fully scramble or otherwise fully block'' sexually 
explicit adult programming or other programming that is indecent, are 
there differences in technology between MVPDs that would require 
different rules?

Initial Regulatory Flexibility Act Analysis

    5. Pursuant to Section 603 of the Regulatory Flexibility Act, the 
Commission has prepared the following initial regulatory flexibility 
analysis (``IRFA'') of the expected impact of these proposed policies 
and rules on small entities. Written public comments are requested on 
the IRFA. These comments must be filed in accordance with the same 
filing deadlines as comments on the rest of the NPRM, but they must 
have a separate and distinct heading designating them as responses to 
the IRFA. The Secretary shall cause a copy of the NPRM, including the 
IRFA, to be sent to the Chief Counsel for Advocacy of the Small 
Business Administration in accordance with Section 603(a) of the 
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. 
601 et seq. (1981).
    6. The Commission issues this NPRM pursuant to Section 505, Pub. L. 
No. 104-104, and seeks public comment on the implementation of that 
statutory provision. Objectives. Our goal in this proceeding is to 
gather information to implement Congress' directive that multichannel 
video programming distributors fully scramble or fully block sexually 
explicit adult programming or other programming that is indecent on any 
channel primarily dedicated to sexually oriented programming so that 
nonsubscribers do not receive it. We also must gather information so we 
can determine the hours when significant numbers of children are likely 
to view such programming if not fully scrambled or fully blocked. Legal 
Basis. Authority for this proposed rulemaking is contained in Sections 
4(i) and 641 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), and in Section 505 of the Telecommunications Act of 1996, Pub. 
L. No. 104-104 (1996).
    Description, Potential Impact and Number of Small Entities 
Affected. The 

[[Page 9673]]
rules proposed could affect certain small entities including 
multichannel video programming distributors who choose to provide 
sexually explicit adult programming or other programming that is 
indecent on a channel primarily dedicated to sexually-oriented 
programming without fully scrambling or fully blocking such programming 
during hours when it is prohibited from doing so by the Commission.
    Reporting, Recordkeeping and Other Compliance Requirements. None. 
Federal Rules which Overlap, Duplicate or Conflict with these Rules. 
None. Any Significant Alternatives Minimizing Impact on Small Entities 
and Consistent with Stated Objectives. None.
    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, notice is hereby given of 
proposed amendments to Part 76, in accordance with the proposals, 
discussions, and statement of issues in this Notice of Proposed 
Rulemaking, and that COMMENT IS SOUGHT regarding such proposals, 
discussions, and statement of issues.

List of Subjects in 47 CFR Part 76

    Cable television.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-5870 Filed 3-8-96; 8:45 am]
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