[Federal Register Volume 62, Number 92 (Tuesday, May 13, 1997)] [Rules and Regulations] [Pages 26245-26246] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-11974] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [CS Docket No. 96-40; FCC 97-141] Telecommunications Act of 1996 AGENCY: Federal Communications Commission. ACTION: Interim rule. ----------------------------------------------------------------------- SUMMARY: This Order establishes the enforcement date of the rule implementing Section 641 of the Communications Act regarding the scrambling of sexually explicit adult video service programming. Section 505 of the Telecommunications Act amends the Communications Act to add Section 641. In this Order, the Commission establishes that the rule implementing Section 641 will be enforced effective May 18, 1997. DATES: 47 CFR 76.227 will be enforced effective May 18, 1997. FOR FURTHER INFORMATION CONTACT: Meryl S. Icove, Cable Services Bureau, (202) 418-7200. SUPPLEMENTARY INFORMATION: This is a synopsis of the Order in CS Docket No. 96-40, FCC 97-141, adopted and released on April 17, 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. Synopsis of Order 1. On February 8, 1996, the Telecommunications Act of 1996 (``1996 Act'') 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 [I]n 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. Section 641(b) provides that: [u]ntil a multichannel video programming distributor complies with the requirement set forth in subsection (a), the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the Commission) when a significant number of children are likely to view it. The Commission adopted an interim rule (61 FR 09648, March 11, 1996) implementing Section 505 and defining, on an interim basis, the hours of 6:00 am to 10:00 pm as those hours when a significant number of children are likely to view such programming. Order and interim rule in CS Docket No. 96-40, Implementation of Section 505 of the Telecommunications Act of 1996: Scrambling of Sexually Explicit Adult Video Service Programming, 61 FR 09648, March 11, 1996, 11 FCC Rcd 5386 (released March 5, 1996). Section 505 provides that these provisions take effect 30 days after the date of enactment of the 1996 Act, i.e., March 9, 1996. The Commission has not enforced Section 505 due to a temporary restraining order and a number of stays that were granted by the United States District Court for the District of Delaware. 2. Prior to the statute becoming effective the United States District Court for the District of Delaware issued a temporary restraining order enjoining the United States Government, including the Commission, from ``enforcing or implementing Section 505 of the Telecommunications Act of 1996 in any manner.'' The court's order stated that the temporary restraining order ``shall remain in force only until the hearing and determination by the district court of three judges of Plaintiff's Motion for Preliminary Injunction.'' Playboy Entertainment Group, Inc. v. United States, 918 F. Supp. 813 (D. Del. 1996). The Cable Services Bureau (``Bureau'') by public notice announced that the Commission would not enforce or implement Section 505 while the temporary restraining order was in effect. Public Notice, Report No. CS 96-17, DA 96-354 (Cable Services Bureau), released March 13, 1996, 11 FCC Rcd 10336 (1996).\1\ --------------------------------------------------------------------------- \1\ DA 96-354 and subsequent DA 96-1906, DA 96-1915, and DA 96- 2064 were not published in the Federal Register. --------------------------------------------------------------------------- 3. On November 8, 1996, a three judge panel of the United States District Court for the District of Delaware issued an order denying petitions for a preliminary injunction regarding Section 505, and thus lifted the temporary restraining order that was in effect. Playboy Entertainment Group, Inc. v. United States, 945 F. Supp. 772 (D. Del. 1996). Thereafter, the Bureau issued a public notice announcing that Section 505 of the Telecommunications Act, and its associated rules, were in effect. Public Notice, DA 96-1906 (Cable Services Bureau), released November 15, 1996. 4. The court, however, ordered that any enforcement of Section 505 was ``stayed pending the decision of the Court on plaintiffs' pending Motions to Stay'' the opinion of the court pending review by the Supreme Court. Playboy Entertainment Group, Inc. v. United States, Civil Action Nos. 96-94/96-107, November 15, 1996. The Bureau announced by public notice that the Commission would not enforce Section 505. Public Notice, DA 96-1915, (Cable Services Bureau), released November 18, 1996. 5. The three judge panel, on December 5, 1996, granted plaintiffs' motion to stay and ordered that any enforcement of Section 505 was ``stayed during the pendency of the [parties'] appeal'' to the Supreme Court. Playboy Entertainment Group, Inc. v. United States, Civil Action Nos. 96-94/96-107, December 5, 1996. On December 9, 1996, the Bureau issued a public notice announcing the court's decision and stating that Section 505 would remain unenforceable pending appeal to the Supreme Court. Public Notice, DA 96-2064 (Cable Services Bureau), released December 9, 1996. 6. On March 24, 1997, the Supreme Court affirmed the District Court's denial of the preliminary injunction. Playboy Entertainment Group, Inc. v. United States, 65 U.S.L.W. 3644, 3647, [[Page 26246]] 1997 WL 128706 U.S. (Mar. 24, 1997). The time to seek rehearing of the Supreme Court's decision expired on April 18, 1997. Congress, prior to the above referenced judicial proceedings, provided that Section 641 would become effective with 30 days advance notice. Consistent with that initial schedule, the rules implementing Section 505 will be enforced effective May 18, 1997. We believe that this amount of time is reasonable given any previous uncertainty with respect to enforcement of this provision and that it will permit operators to comply, to the maximum extent feasible, with any relevant subscriber notice requirements. 7. Accordingly, it is ordered that, pursuant to Sections 4(i) and 641 of the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i), 561, and Section 505 of the Telecommunications Act of 1996, 47 CFR Sec. 76.227 will be enforced effective May 18, 1997. Lists of Subjects in 47 CFR Part 76 Cable television. Federal Communications Commission William F. Caton, Acting Secretary. [FR Doc. 97-11974 Filed 5-12-97; 8:45 am] BILLING CODE 6712-01-P