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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

                                )
In the Matter of                )
Implementation of Section 10 of the )
Cable Television Consumer Protection)
and Competition Act of 1992     )
                                )       MM Docket No. 92-258
Indecent Programming and        )
Other Types of Materials on     )
Cable Access Channels           )
                                )

                  MEMORANDUM OPINION AND ORDER


Adopted:  May 6, 1997                   Released:  May 7, 1997

By the Commission:

     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 Tele-communications
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.  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 the Communications Act.  Section 76.701 and Section
76.702 of the Commission's rules implement Section 10. 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.

     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.

     4.   As a result of the Court's decision that Section 10(b) is unconstitutional, we will
delete those parts of Section 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."  Further, the Court in Denver Consortiumstated 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."  It is also the case that, under Section
10(a), cable operators may prohibit some indecent programming, but not all.  

     5.   Finally, as a result of the Court's decision that Section 10(c) is unconstitutional, we
will amend Section 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.

Paperwork Reduction Act of 1995 Analysis  

     6.   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.  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.

     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 dconway@fcc.gov   For additional information concerning the information collections
contained herein contact Dorothy Conway at 202-418-0217, or via the Internet at dconway@fcc.gov.

Regulatory Flexibility Act Analysis

     8.   Pursuant to Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603, an Initial
Regulatory Flexibility Analysis ("IRFA") was incorporated in the Notice of Proposed Rulemaking
in MM Docket 92-258.  Comments concerning the IRFA were addressed in previous orders.  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.  A copy of this certification will be sent to the Chief Counsel for Advocacy of the Small
Business Administration.

Ordering Clauses
     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 C.F.R.  154(i), 154(j),
303, and the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-
385, Part 76 of the Commission Rules, 47 C.F.R. Part 76, IS AMENDED as set forth in Appendix
B.

     10.  IT IS FURTHER ORDERED that the rule provisions set forth in Appendix B shall
become effective upon approval by the Office of Management and Budget of the modified
information collection requirements.


                              Federal Communications Commission



                              William F. Caton
                              Acting SecretaryAPPENDIX A
                                              
                         Current Rules

 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 that does not prohibit the distribution of programming in accordance with
paragraph (a) of this section shall place any leased access programming identified by program
providers as indecent on one or more channels that are available to subscribers only with their prior
written consent as provided in paragraph (c) of this section.
    (c) A cable operator shall make such programming available to a subscriber within 30 days of
receipt of a written request for access to the programming that includes a statement that the
requesting subscriber is at least eighteen years old; a cable operator shall terminate a subscriber's
access to such programming within 30 days from receipt of a subscriber's request.
    (d) A program provider requesting access on a leased access channel shall identify for a cable
operator any programming that is indecent as defined in paragraph (g) of this section. Such
identification shall be in writing and include the full name, address, and telephone number of the
program provider and a statement that the program provider is responsible for the content of the
programming. A cable operator may require that such identification be
  provided up to 30 days to the requested date for carriage. A program provider requesting carriage
of "live programming" on a leased access channel that is not identified as indecent must exercise
reasonable efforts to insure that indecent programming will not be presented. A cable operator will
not be in violation of paragraph (b) of this section if it fails to block indecent programming that is
not identified by a program provider as required in paragraph (d) of this section.
    (e) A cable operator may request a program provider to certify that the programming intended for
leased access is not obscene programming or indecent programming subject to the requirement of
paragraph (b) of this section. A cable operator may request a program provider of "live
programming" to certify that reasonable efforts will be made to ensure that such programming is not
obscene programming or indecent programming subject to the requirement of paragraph (b) of this
section.
    (f) A cable operator shall not be required to provide leased access to a program provider if--
   (1) The program provider refuses to identify whether programming is indecent as required under
paragraph (d) of this section; or  
  (2) The program provider refuses or fails to certify, if requested by the cable operator under
paragraph (e) of this section, that the programming is not obscene programming or indecent
programming subject to the requirement of paragraph (b) of this section; or
    (3) The program provider refuses or fails to certify, if requested by the cable operator under
paragraph (e) of this section, that reasonable efforts will be made to ensure that any "live
programming" is not obscene programming or indecent programming subject to the requirement of
paragraph (b) of this section; or
    (4) The program provider has failed to provide up to thirty days' prior notice, if requested by the
cable operator, that the programming is indecent.
    (g) For purposes of paragraphs (b)-(f) of this section, "indecent programming" is any
programming that describes or depicts sexual or excretory activities or organs in a patently offensive
manner as measured by contemporary community standards for the cable medium.
    (h) Cable operators shall retain records sufficient to verify their compliance with paragraph (b)
of this section and make such records available to the public. Such records must be retained for a
period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B).
  (i) Paragraphs (a) through (h) of this section apply to any leased access program or portion of a
leased access program which the cable operator reasonably believes contains obscenity, indecency,
or nudity.


 Sec. 76.702  Public, educational and governmental access.

Any cable operator may prohibit the use on its system of any channel capacity of any public,
educational, or governmental access facility for any programming which contains nudity, obscene
material or indecent material as defined in  76.701(g), or material soliciting of promoting unlawful
conduct.  For purposes of this section, "material soliciting or promoting unlawful conduct" shall
mean material that is otherwise proscribed by law.  A cable operator may require any access user,
or access manager or administrator agreeing to assume the responsibility of certifying, to certify that
its programming does not contain any of the materials described above and that reasonable efforts
will be used to ensure that live programming does not contain such material.




                            APPENDIX B
                          Amended Rules

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.

     2.   Section 76.701 is amended 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.

     3.   Section 76.702 is amended 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.