02-332. Repeal of the Scrambling of Sexually Explicit Adult Video Service Programming Rules

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Communications Commission has repealed a section of its multichannel video and cable television service rules dealing with the blocking of indecent sexually-oriented programming channels because the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 § 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 § 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 § 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:

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.

§ 76.227

[Removed and Reserved]

2. Section 76.227 is removed and reserved.