[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Rules and Regulations]
[Pages 28371-28373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13624]



[[Page 28371]]

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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

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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