From: sbarber@panix.com (Steve Barber)
Newsgroups: rec.video.cable-tv
Subject: FCC Proposed Rulemaking on Indecent Programming
Date: 23 Nov 92 16:54:48 GMT
Distribution: usa
Organization: PANIX Public Access Unix, NYC

The FCC, in accordance with recently enacted legislation, is proposing
to require that all programming which is "indecent" must be either
prohibited by the cable operator or placed on a single channel, which
cable subscribers may not receive unless they request reception in
writing from their cable operator.

This, it seems to me, is a carefully crafted end-run around the Free
Speech clause of the US Constitution.

If you have strong feelings about this, one way or the other, the FCC is
*NOW* accepting comments.  I have included the notice from the Federal
Register below.  Comments must be received by the FCC by December 7, 1992.

--------------------------------------------------------------------------
                       FEDERAL COMMUNICATIONS COMMISSION
                   AGENCY: Federal Communications Commission.

                                 47 CFR Part 76
            Cable  Television Consumer Protection and Competition Act
                                    of 1992

                       [MM Docket No. 92-258, FCC 92-498]

                                  57 FR 54207

                               November 17, 1992
                                        
ACTION: Proposed rule.

SUMMARY: The Commission is seeking implementation of the provisions of
the Communications Act that were affected by the passage of the Cable
Television Consumer Protection and Competition Act. We are statutorily
required to implement some of these changes in 120 days and others in
180 days. The intended effect of this rule making is to request
comments and to bring our rules into statutory compliance with the
cable television bill.

DATES: Comments must be submitted on or before December 7, 1992, and Reply
Comments are due on or before December 21, 1992.

ADDRESSES: Federal Communications Commission, 1919 M Street, NW., Washington,
DC 20554.

FOR FURTHER INFORMATION CONTACT: Stephen A. Bailey, Office of General Counsel,
at 202-254-6530.

TEXT: SUPPLEMENTARY INFORMATION: 1. This is a summary of the Notice of Proposed
Rule Making in MM Docket No. 92-258, adopted November 5, 1992, and released
November 10, 1992. The full text of this document is available for inspection
and copying, Monday through Friday, 9 a.m. to 4:30 p.m. in the FCC Reference
Center (Room 239), 1919 M St., NW., Washington, DC 20554, and may be purchased
from the Commission's copy contractor, Downtown Copy Center, 202-452-1422, 1114
21st St., NW., Washington, DC 20036.

   2. On October 5, 1992, Congress enacted the Cable Television
Consumer Protection and Competition Act of 1992, Public Law 102-385,
which substantially alters existing provisions of the Communications
Act that govern cable television. Section 10 of the Act amends section
612(h) of the Communications Act, 47 U.S.C. 532(h), to permit a cable
operator to enforce a "written and published policy of prohibiting
programming that the cable operators reasonably believes describes or
depicts sexual or excretory activities or organs in a patently
offensive manner as measured by contemporary community standards."
This statutory authority is self-executing and, therefore, a cable
operator's authority to prohibit on leased access channels programming
it reasonably believes to be indecent becomes effective on December 4,
1992.

   3. Section 10 of the new Act also amends 612 of the Communications Act
(47 U.S.C. 532) by adding a new subsection (j). Paragraph 1 of subsection
(j) requires the Commission to promulgate regulations within 120 days of
the date of enactment designed to:

   Limit the access of children to indecent programming, as defined by
Commission regulations, and which  cable  operators have not voluntarily
prohibited under subsection (h) by --

   (1) Requiring  cable  operators to place on a single channel all indecent
programs, as identified by program providers, intended for carriage on channels
designated for commercial use under this section;

   (2) Requiring  cable  operators to block such single channel unless the
subscriber requests access to such channel in writing; and

   (3) Requiring programmers to inform cable operators if the program would
be indecent as defined by Commission regulations.

   Paragraph (2) of subsection (j) states that cable operators are required
to "comply with the regulations promulgated pursuant to paragraph (1)."

   4. The Commission seeks comment on using for its definition of "indecent
programming" the definitional language in the first part of section 10
which refers to programming "that describes or depicts sexual or excretory
activities or organs in a patently offensive manner as measured by
contemporary community standards." It invites comment on whether, in light
of the Supreme Court's statement in FCC v. Pacifica Foundation, 438 U.S.
726, 728 (1978), that "each medium of expression presents special First
Amendment problems," the Commission should state in its definition that the
"community standards" test to be used is one which applies to the cable
medium. It notes that, in analogous areas, it has tailored its indecency
definitions for broadcast programming and telephone communications to the
standards applicable to those particular media. It seeks comment on how it
may faithfully execute the provisions of the statute and also ensure that
the statute is implemented in the most constitutionally permissible manner.

   5. The Commission also seeks comment on proposed regulations that would
codify the statutory requirements that require cable operators to place all
indecent programming on a single leased access channel and to block access
to that channel unless the subscriber requests access in writing.
Commenters are asked to provide any relevant suggestions or comments
concerning appropriate blocking mechanisms and procedures relating to
subscriber access. It also seeks comment on its interpretation that, under
section 624(d)(2)(A) of the Communications Act, cable operators would still
be required to provide a "lock box," upon request, to a subscriber who has
specifically requested access to this channel.

   6. It also requests comment on its construction of the statute that
cable operators have no power to require that indecent programming be
carried on the blocked channel unless the program provider first makes the
requisite determination of indecency and so informs the cable operator. The
Commission also seeks comment on whether the cable operator, consistent
with section 612(c)(2)'s no censorship provision and with the new
amendments under section 10, can require program providers to certify that
their programming is not obscene or indecent (as defined by Commission
regulations). Comment is also sought on what would be a reasonable time
frame for the required notification by a program provider to the cable
operator, whether such notification should be made in writing, on any other
requirements that should be adopted in order to effectuate the new law's
provisions and on any other matters not discussed in the notice that they
believe have an important bearing on the Commission's proposed
implementation of the statute. It asks commenters to address whether a
cable operator should be held harmless from liability under its proposed
rules if it does not receive any, or timely, notification from a
programmer.

   7. Finally, the Commission seeks comment on its proposal to codify in
the rules the authority afforded to cable operators to prohibit the use of
public, educational, or governmental access "for any programming which
contains obscene material, sexually explicit conduct, or material
soliciting or promoting unlawful conduct," and on whether its regulations
should provide for any additional matters not expressly addressed in the
statute. Commenters may wish to address whether specific procedures should
be developed to govern disputes between the cable operator and programmer
of these access channels. Because these channels are mandated and their
conditions of use are defined at the local level, the Commission proposes
that any disputes between the cable operator and programmer of these access
channels be handled at the local level and invites comment on this and any
other aspect that they believe would be germane to proper implementation of
this provision.

   8. This is a non-restricted notice and comment rulemaking proceeding. Ex
parte presentations are permitted, except during the Sunshine Agenda period,
provided they are disclosed pursuant to the Commission's rules. See 47 CFR @@
1.1202, 1.1203 and 1.1206(a). Pursuant to applicable procedures set forth in
sections 1.415 and 1.419 of the Commission's Rules, interested parties may file
comment on or before December 7, 1992, and reply comments on or before December
21, 1992. All relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding. To file formally in this
proceeding, participants must file an original and four copies of all comments,
reply comments, and supporting material. If participants want each Commissioner
to receive a personal copy of their comments, an original plus nine copies must
be filed. Comments and reply comments should be sent to the Office of the
Secretary, Federal Communications Commission, 1919 M Street, NW., Washington,
DC 20554.

   9. As required by section 603 of the Regulatory Flexibility Act (Pub. L.
No.  96-353, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981), the Commission has
prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected
impact on small entities of the proposals suggested in this document. The
IRFA is set forth below. Written public comments are requested on the IRFA.
The comments must be filed in accordance with the same filing deadlines as
comments on the rest of this Notice of Proposed Rule Making, but they must
have a separate and distinct heading, designating them as responses to the
Initial Regulatory Flexibility Analysis. The Secretary shall send a copy of
this Notice of Proposed Rule Making, including the IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with section 603(a) of the Regulatory Flexibility Act.

   10. Authority for this proceeding is contained in sections 4(i), 4(j),
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j) and 303 (r) and (j) and section 10 of the Cable Television Consumer
Protection and Competition Act of 1992, Public Law 102-385 (1992).

 
List of Subjects in 47 CFR Part 76

    Cable  television.

 
Federal Communications Commission

Donna R. Searcy,

   Secretary.

 
Initial Regulatory Flexibility Analysis

 
Reason for action

   This proceeding is being initiated in order to seek comment on the best way
to implement section 10 of the  Cable  Consumer Protection and Competition Act
of 1992, Public Law 102-385, relating to indecent programs on  leased access 
channels of a  cable  system and to  cable  operator restrictions on certain
programs on public, educational, and governmental access channels.

 
Objectives

   The Commission's goal is to provide notice and opportunity to comment to
members of the public regarding efficacious implementation of section 10 of the
new Act.

 
Legal basis

   Authority for this proposed rule making is contained in sections 4(i), 4(j)
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), and 303(r) and section 10 of the  Cable  Consumer Protection and
Competition Act of 1992, Public Law 102-385 (1992).

 
Reporting, Recordkeeping and Other Compliance Requirements

   The Commission is asking for comment on whether  cable  operators shall be
required to retain any notifications made by program providers that the program
they seek to present on the  cable  system's  leased access  channels is
indecent.

 
Federal Rules that Overlap, Duplicate or Conflict With Proposed Rule

   None.

 
Description, Potential Impact, and Number of Small Entities Involved

   The rules proposed in this proceeding would impose new burdens on all
cable operators, including smaller ones, by requiring them to channel
indecent programs on leased access to a single channel but would also
enable operators to exercise more control over the content of public,
educational, and governmental access channels to the extent they involve
programs which contain obscene material, sexually explicit conduct, or
material soliciting or promoting unlawful conduct.
 
Any Significant Alternatives Minimizing the Impact on Small Entities Consistent
With the Stated Objectives

   None.
[FR Doc. 92-27787 Filed 11-16-92; 8:45 am]

   BILLING CODE 6712-01-M

-- 
Steve Barber                                             sbarber@panix.com
"The direct deed is the most meaningful reflection." - Bill Evans
Nothing I say is legal advice.  It can't be.  I don't know anything.