[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Rules and Regulations]
[Pages 67115-67117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31869]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-132; FCC 01-314]


1998 Biennial Review--Multichannel Video and Cable Television 
Service

AGENCY: Federal Communications Commission.

ACTION: Final rule and clarifications.

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SUMMARY: In this document we adopt a Commission rule which provides a 
limited exception for cable operators with 1000 or more, but fewer than 
5000, subscribers. Specifically, such cable systems are relieved from 
certain recordkeeping requirements associated with maintaining the 
public file, requiring public file information to be provided only upon 
request. This action was taken in response to the Commission's 1998 
biennial review of the public file and notice requirements concerning 
cable television. This document also makes a number of clarifications 
to various part 76 rules.

DATES: Effective January 28, 2002.

ADDRESSES: Federal Communications Commission, Office of the Secretary, 
445 12th Street, SW, Room TW-A-325, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Sonia Greenaway-Mickle, Cable Services 
Bureau, (202) 418-1419.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order (``Second Order''), FCC 01-314, adopted October 22, 
2001; released October 31, 2001. The full text of the Commission's 
Order is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room CY-A257) at its headquarters, 
445 12th Street, SW, Washington, DC 20554, or may be purchased from the 
Commission's copy contractor, International Transcription Service, 
Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036, or 
may be reviewed via internet at http://www.fcc.gov/csb/.

Synopsis of the Second Report and Order

    1. In this 1998 Biennial Review--Streamlining of Cable Television 
Service Part 76 Public File and Notice: Second Report and Order, the 
Commission addresses portions of part 76 of the cable television rules 
pertaining to the public file, notice, recordkeeping, and reporting 
requirements. First, we reinstate, as a final rule, Sec. 76.1700(a). 
Second, the Commission clarifies certain provisions in the part 76 
rules in order to more clearly set forth the compliance requirements 
and regulatory process for cable operators, franchising authorities, 
and the public. Finally, we make non-substantive rule changes to 
correct errors in the publication of part 76 of the Commission's rules. 
With this action, we complete the Commission's biennial review of the 
public file and notice requirements applicable to cable operators under 
part 76 of the Commission's rules.
    2. The part 76 cable television rules contained numerous public 
file, notice, recordkeeping, and reporting requirements scattered 
throughout part 76. In connection with the 1998 Biennial Regulatory 
Review--Streamlining of Cable Television Services Part 76 Public File 
and Notice Requirements, Report and Order, the Commission revised and 
streamlined the public file and notice requirements set forth in the 
Commission's part 76 cable television rules. The Notice of Proposed 
Rulemaking in this proceeding, however, inadvertently was not published 
in the Federal Register. Because the rule changes adopted were deemed 
to be primarily procedural in nature, the failure of Federal Register 
notice was determined not to impair their effectiveness. In this 
regard, Sec. 1.412(b)(5) of the Commission's rules, provides that rules 
involving Commission organization, procedure, or practice are exempt 
from the requirement of prior notice by publication in the Federal 
Register. Section 76.1700(a), however, was determined to alter the 
substantive public file requirements for a subset of cable operators 
and to be subject to the prior public notice requirement. Section 
76.1700(a) was published subsequently in the Federal Register (65 FR 
53610) Sept. 5, 2000, as an ``interim rule,'' and interested parties 
were afforded an opportunity to comment upon it. No comments were 
filed.
    In this proceeding, we adopt Sec. 76.1700(a) as a final rule.
    3. Part 76 rule clarification. We now consider on our own motion, 
specific rules adopted in part 76 relating to the public file, notice, 
recordkeeping, and reporting requirements requiring clarification.
    4. Section 76.1700(a), entitled, ``Records To Be Maintained Locally 
By Cable System Operators,'' provides, in part, that cable operators 
having 1000 or more subscribers but fewer than 5000 subscribers shall, 
upon request, make public file information available. This provision 
gives such operators an alternative to maintaining paper files and 
increases flexibility in complying with the public file maintenance 
requirements and responding to information requests. Since operators 
meeting this particular subscriber requirement must produce public file 
information only upon request, records need not be maintained at a 
particular local site, provided they are made promptly available once a 
request is received. Therefore, we clarify the title of Sec. 76.1700 to 
be more consistent with this particular aspect of the rule. We delete 
the word ``locally'' from the title to more accurately depict the fact 
that records need not be maintained locally where the cable system 
operator meets the specified subscriber limits, so long as the 
information can be made available ``upon request;'' access should not 
be delayed. Although the title of the rule section changes, with regard 
to those cable operators that have 5000 or more subscribers and that 
are required to maintain a public inspection file, we reiterate that 
documents required to be included in the public inspection file must be 
available, readily accessible and sited locally.
    5. In the Report and Order (65 FR 53610) Sept. 5, 2000, we 
concluded that the Commission would maintain the exemption for small 
systems serving fewer than 1000 subscribers from the recordkeeping 
requirements contained in former Sec. 76.305(a), which is redesignated 
as Sec. 76.1700(a). Therefore, we clarify that Sec. 76.1700(a) totally 
exempts systems serving fewer than 1000 subscribers from the 
Commission's recordkeeping requirements contained in Secs. 76.1701 
(political file); 76.1715 (sponsorship identification); 76.1702 (equal 
employment opportunity); 76.1703 (commercial records for children's 
programming); 76.1704 (proof-of-performance tests data); and 76.1706 
(signal leakage logs and repair records). These records do not need to 
be maintained or produced by systems meeting the subscriber limitation.
    6. Section 76.1705 provides that each cable system is required to 
maintain at its local office a current listing of the cable television 
channels that the system delivers to its subscribers. Although the rule 
states that channel listing information should be maintained, no 
mention is made of exactly where such lists should be located at the 
local office. In implementing this provision, the Commission stated 
that such information would be useful to consumers. To the extent 
necessary, we clarify that the operator of each cable television system 
subject to the public file requirements of Sec. 76.1700(a) shall 
maintain as part of its public inspection file a current list of the 
cable television channels that the system delivers to its

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subscribers. Cable operators that are exempt from the public file 
requirement shall maintain the channel lineup information in a location 
that is readily accessible by the general public.
    7. Section 76.1715 requires that whenever sponsorship announcements 
are omitted, the cable system operator must maintain for public 
inspection a file listing the name, address, and telephone number of 
the advertiser of the commercial announcement. The length of time that 
such information should be retained is not provided. However, pursuant 
to Sec. 73.1212, a similar collection of information from broadcast 
stations is required whenever sponsorship announcements are omitted. In 
the broadcast context such advertiser information must be retained for 
a period of two years from the date of broadcast. We interpret 
Sec. 76.1715 in this Second Order to operate consistently with 
Sec. 73.1212. Provided that it retains the required advertiser 
information for a period of at least two years after the airing of the 
commercial announcement, a cable operator will be in compliance with 
the record retention requirement of Sec. 76.1715. This interpretation 
will ensure that operators have notice of their responsibilities 
regarding sponsorship announcement recordkeeping while accommodating 
the public by ensuring access to such information for an adequate 
period of time.

Final Regulatory Flexibility Analysis

    8. As required by section 603 of the Regulatory Flexibility Act 
(``RFA''), the Commission incorporated an Initial Regulatory 
Flexibility Analysis (``IRFA'') into its Report and Order. The 
Commission sought written public comments on the possible impact of the 
proposed rule on small entities, including comments on the IRFA. This 
Final Regulatory Flexibility Analysis (``FRFA'') incorporated into the 
Second Report and Order (``Second Order'') conforms to the RFA.
    9. Need for, and Objectives of, the Second Report and Order. The 
Commission adopted the 1998 Biennial Regulatory Review--Streamlining of 
Cable Television Services Part 76 Public File and Notice Requirements, 
Report and Order (``Report and Order'') pursuant to Section 11 of the 
1996 Telecommunications Act which requires the Commission to conduct a 
biennial review of regulations that apply to operations and activities 
of any provider of telecommunications service and to repeal or modify 
any regulation it determines to be no longer in the public interest. 
Section 76.1700(a) was determined to alter the substantive public file 
requirements for a subset of cable operators and to be subject to the 
prior public notice requirement. Section 76.1700(a) was published 
subsequently in the Federal Register (65 FR 53610) Sept. 5, 2000, as an 
interim rule and interested parties were afforded an opportunity to 
comment upon it. No comments were filed. The Second Order reinstates 
Sec. 76.1700(a).
    10. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. No comments were filed specifically in response 
to the IRFA.
    11. Description and Estimate of the Number of Small Entities To 
Which the Rule Applies. The RFA directs agencies to provide a 
description of, and where feasible, an estimate of the number of small 
entities that may be affected by the rule here adopted. The RFA defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction'' under Section 3 of the Small Business Act. A small 
business concern is one which: (1) is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration.
    12. The Second Order adopts Sec. 76.1700(a), a rule that applies to 
cable operators with 1000 or more, but fewer than 5000, subscribers. 
The SBA has developed a definition of small entities for cable and 
other pay television services, which includes all such companies 
generating $11 million or less in revenue annually. This definition 
includes cable systems operators, closed circuit television services, 
direct broadcast satellite services, multipoint distribution systems, 
satellite master antenna systems, and subscription television services. 
According to the Census Bureau data from 1992, there were 1,788 total 
cable and other pay television services and 1,423 had less than $11 
million in revenue.
    13. The Communications Act of 1934, as amended, also contains a 
definition of a small cable system operator, which is ``a cable 
operator that, directly or through an affiliate, serves in the 
aggregate fewer than 1 percent of all subscribers in the United States 
and is not affiliated with any entity or entities whose gross annual 
revenues in the aggregate exceed $250,000,000.'' The Commission has 
determined that there are 67,700,000 subscribers in the United States. 
Therefore, we estimate that an operator serving fewer than 677,000 
subscribers shall be deemed a small operator, if its annual revenues, 
when combined with the total annual revenues of all its affiliates, do 
not exceed $250 million in the aggregate. Based on available data, we 
estimate that the number of cable operators serving 677,000 subscribers 
or less totals 1,450. We do not request nor collect information on 
whether cable system operators are affiliated with entities whose gross 
annual revenues exceed $250,000,000, and therefore are unable at this 
time to estimate more accurately the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
    14. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. Section 76.1700(a), adopted in the Second 
Order, will not increase the recordkeeping or information collection 
requirements for any cable operator. In fact, Sec. 76.1700(a) will 
decrease certain recordkeeping requirements for cable operators with 
1000 or more, but fewer than 5000, subscribers. The rule as adopted 
eliminates the requirement that cable operators with 1000 or more, but 
less than 5000, subscribers maintain certain records in their public 
file. The rule provides that those records need only be provided 
pursuant to a specific request. Thus, the adopted rule will result in 
reductions in administrative costs borne by cable operators in 
connection with reproducing and maintaining certain records in their 
public files.
    15. Steps taken to Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include the following four 
alternatives: (1) The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance or reporting 
requirements under the rule for small entities; (3) the use of 
performance, rather than design, standards; and (4) an exemption from 
coverage of the rule, or any part thereof, for small entities. We are 
adopting a rule that establishes reduced regulatory burdens on small 
entities with regard to certain recordkeeping requirements. In 
addition, we sought comment on the proposed rule to ease the 
recordkeeping requirements for certain small cable operators. No 
comments were received and we are aware of no alternatives to further 
reduce burdens on small entities consistent with the important 
regulatory objectives served by the reporting requirements.

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    16. Report to Congress. The Commission will send a copy of the 
Second Order, including this FRFA, in a report to Congress pursuant to 
the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 801(a)(1)(A). The Second Order and this FRFA (or summaries 
thereof) will also be published in the Federal Register, see 5 U.S.C. 
604(b), and will be sent to the Chief Counsel for Advocacy of the Small 
Business Administration.

Paperwork Reduction Act

    This Second Order has been analyzed with respect to the Paperwork 
Reduction Act of 1995 (the ``1995 Act'') and does not impose new or 
modified information collection requirements on the public.
    OMB Approval Number: 3060-0981.
    Title: 1998 Biennial Regulatory Review `` Streamlining of Cable 
Television Services Part 76 Public File and Notice Requirements, Second 
Report and Order.
    Type of Review: None.
    Respondents: Businesses or other for-profit entities.
    Needs and Uses: The Commission adopted the Report and Order 
pursuant to Section 11 of the 1996 Telecommunications Act which 
requires the Commission to conduct a biennial review of regulations 
that apply to operations and activities of any provider of 
telecommunications service and to repeal or modify any regulation it 
determines to be no longer in the public interest. Although Section 11 
does not specifically refer to cable operators, the Commission has 
determined that the first biennial review presented an excellent 
opportunity for a thorough examination of all of the Commission's 
regulations. The initial NPRM in this proceeding was not published in 
the Federal Register. The Commission found that, with the exception of 
one provision, the rules adopted in the Report and Order are procedural 
in nature and subject to the prior notice exemption contained in 
Sec. 1.412(b)(5) of the Commission's rules. The Federal Register notice 
provided notice of Sec. 76.1700(a), adopted as an interim rule and 
provided interested parties the opportunity to comment.

List of Subjects in 47 CFR Part 76

    Multichannel video and cable television service.


Federal Communications Commission.
Magalie Roman Salas,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND 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, 338, 339, 503, 521, 522, 531, 
532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 
554, 556, 558, 560, 561, 571, 572, 573.

    2. Section 76.1700 is amended by revising the section heading and 
the introductory text of paragraph (a) to read as follows:


Sec. 76.1700  Records to be maintained by cable system operators.

    (a) Recordkeeping requirements. The operator of every cable 
television system having fewer than 1,000 subscribers is exempt from 
the public inspection requirements contained in Sec. 76.1701 (political 
file); Sec. 76.1715 (sponsorship identification); Sec. 76.1702 (EEO 
records available for public inspection); Sec. 76.1703 (commercial 
records for children's programming); Sec. 76.1704 (proof-of-performance 
test data); and Sec. 76.1706 (signal leakage logs and repair records). 
The operator of every cable television system having 1000 or more 
subscribers but fewer than 5000 subscribers shall, upon request, 
provide the information required by Sec. 76.1715 (sponsorship 
identification); Sec. 76.1702 (EEO records available for public 
inspection); Sec. 76.1703 (commercial records for children's 
programming); Sec. 76.1704 (proof-of-performance test data); and 
Sec. 76.1706 (signal leakage logs and repair records) but shall 
maintain for public inspection a file containing a copy of all records 
required to be kept by Sec. 76.1701 (political file). The operator of 
every cable television system having 5000 or more subscribers shall 
maintain for public inspection a file containing a copy of all records 
which are required to be kept by Sec. 76.1701 (political file); 
Sec. 76.1715 (sponsorship identification); Sec. 76.1702 (EEO records 
available for public inspection); Sec. 76.1703 (commercial records for 
children's programming); Sec. 76.1704 (proof-of-performance test data); 
and Sec. 76.1706 (signal leakage logs and repair records).
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[FR Doc. 01-31869 Filed 12-27-01; 8:45 am]
BILLING CODE 6712-01-P