[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]


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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.

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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\
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    \1\ DA 96-354 and subsequent DA 96-1906, DA 96-1915, and DA 96-
2064 were not published in the Federal Register.
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    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]
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