[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 jboley@fcc.gov.
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 jboley@fcc.gov.
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
[[Page 28372]]
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 jboley@fcc.gov For
additional information concerning the information collections contained
herein contact Judy Boley at 202-418-0217, or via the Internet at
jboley@fcc.gov.
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
