[Federal Register Volume 67, Number 4 (Monday, January 7, 2002)]
[Rules and Regulations]
[Pages 678-680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-332]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 96-40; FCC 01-340]


Repeal of the Scrambling of Sexually Explicit Adult Video Service 
Programming Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Federal Communications Commission has repealed a section 
of its multichannel video and cable television

[[Page 679]]

service rules dealing with the blocking of indecent sexually-oriented 
programming channels because the underlying statutory provision, 47 
U.S.C. 561, was struck down as unconstitutional under the First 
Amendment.

DATES: Effective January 7, 2002.

FOR FURTHER INFORMATION CONTACT: Ben Golant, Cable Services Bureau, at 
202-418-7111.

SUPPLEMENTARY INFORMATION:
    1. By this Order, released November 21, 2001, we repeal Sec. 76.227 
of the Commission's rules because the underlying statutory provision, 
section 641 of the Communications Act of 1934, as amended (47 U.S.C. 
561), was found to be unconstitutional by the United States Supreme 
Court. These actions finalize the staff recommendations considered by 
the Commission earlier this year in the 2000 Biennial Regulatory 
Review.
    2. Section 641 requires that any multichannel video programming 
distributor, including any cable television operator, ``providing 
sexually explicit adult programming or other programming that is 
indecent on any channel of its service primarily dedicated to sexually-
oriented programming'' either ``fully scramble or otherwise fully block 
the video and audio portion of such channel so that one not a 
subscriber to such channel of programming does not receive it,'' or, 
alternatively, not provide that programming ``during the hours of the 
day (as determined by the [Federal Communications] Commission) when a 
significant number of children are likely to view it.'' The provision 
addressed concerns regarding ``signal bleed'' of channels that are 
devoted to sexually explicit adult programming. Signal bleed may occur 
when a multichannel video program distributor partially scrambles or 
otherwise partially blocks the signal on sexually explicit channels in 
an effort to prevent clear reception for those subscribers that do not 
pay for such channels. When sexually explicit material is offered on an 
analog service tier, some images and sounds may be clearly identifiable 
if the scrambling technology is inadequate.
    3. Section 640 of the Communications Act, a companion to section 
641, also was enacted as part of the Telecommunications Act of 1996. 
Section 640 provides that, ``upon request by a cable service 
subscriber, a cable operator shall, without charge, fully scramble or 
otherwise fully block the audio and video programming of each channel 
carrying such programming so that one not a subscriber does not receive 
it.'' One important difference between section 641 and section 640 is 
that the operator has a mandatory obligation to block programming to 
all households under section 641, rather than to individual households 
as provided in section 640. Further, section 640 applies only to cable 
operators while section 641 applies to all multichannel video 
programming distributors (``MVPDs''), including satellite carriers and 
open video system operators.
    4. On March 5, 1996 (61 FR 9648, March 11, 1996), the Commission 
issued an Order to implement the new statutory language of section 641. 
At that time, the Commission adopted a rule incorporating section 
641(a). The Commission 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. The Commission did not address 
section 640 in that proceeding.
    5. In 1996, Playboy Entertainment Group (``Playboy'') brought suit 
against the government asserting that section 641 was unconstitutional 
under the First Amendment. A three judge district court panel agreed 
with Playboy, finding that section 641 was not the least restrictive 
means to advance the government's interest in protecting children from 
exposure to sexually-related material. Indeed, the district court 
concluded that section 640 provides a less restrictive alternative 
means to protect those who wish to block out unwanted programming. On 
that basis, the district court issued a permanent injunction barring 
enforcement of section 641.
    6. On direct appeal by the government, the Supreme Court ruled that 
the scrambling, blocking, and time shifting requirements of section 
641, implemented by the Commission, violate the First Amendment. The 
Court concluded that section 641 was not the least restrictive means to 
protect individuals from exposure to sexually explicit programming. The 
Court held that compliance with the scrambling limitation of section 
641 silenced ``protected speech for two-thirds of the day in every home 
in a cable service area, regardless of the presence or likely presence 
of children or of the wishes of the viewer.'' Like the district court 
below, the Court concluded that section 640 provides a less restrictive 
method for protecting children from exposure to explicit materials. The 
Court further found that the government failed to show that the 
alternative protection under section 640 would be so ineffective as to 
justify the more restrictive requirements of section 641.
    7. Given the Court's decision regarding the unconstitutionality of 
the underlying statutory provision, we hereby repeal Sec. 76.227 of our 
rules. We undertake these ministerial actions without the issuance of a 
Further Notice of Proposed Rulemaking because we believe that a further 
proceeding is unnecessary in light of the Supreme Court's decision in 
Playboy v. FCC.
    8. We note that parents and others concerned about the availability 
of partially scrambled sexual content may rely on advances in 
technology to secure their households from undesirable programming. 
Specifically, we note that the phenomenon of signal bleed is present 
generally where the cable wire is directly connected to the television 
receiver. Signal bleed is circumvented when addressable analog set top 
boxes or digital set top boxes are connected to the set.
    9. The Act provides several legal remedies, working in tandem with 
available technology, for those who object to certain content made 
available over a cable system. First, as section 640 requires, a cable 
operator must block programming, using any means, if such a request is 
made by a particular subscriber. Second, a cable subscriber may obtain 
a lock-box from the local cable operator if he or she wants to 
selectively block unwanted material. Finally, subscribers may purchase 
television sets equipped with V-Chips that enable individuals to block 
television programs, including sexually explicit content, assigned a 
particular rating by the video programmer.
    10. Accordingly, IT IS ORDERED that Sec. 76.227 of the Commission's 
rules IS REPEALED upon publication of this Order in the Federal 
Register.
    11. IT IS FURTHER ORDERED that the Commission's rules ARE AMENDED 
as set forth in the rule changes.
    12. These actions are taken pursuant to sections 4(i), 4(j) and 303 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), and 303.

List of Subjects in 47 CFR Part 76

    Cable television.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

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

[[Page 680]]

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

    1. The authority citation for part 76 is revised to read as 
follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 
307, 308, 309, 312, 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, and 573.


Sec. 76.227  [Removed and Reserved]

    2. Section 76.227 is removed and reserved.
[FR Doc. 02-332 Filed 1-4-02; 8:45 am]
BILLING CODE 6712-01-P