§ 532 Cable channels for commercial use · 116-182

§ 532.

Cable channels for commercial use

(a)

Purpose

The purpose of this section is to promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems.

(b)

Designation of channel capacity for commercial use

(1)

A cable operator shall designate channel capacity for commercial use by persons unaffiliated with the operator in accordance with the following requirements:

(A)

An operator of any cable system with 36 or more (but not more than 54) activated channels shall designate 10 percent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation.

(B)

An operator of any cable system with 55 or more (but not more than 100) activated channels shall designate 15 percent of such channels which are not otherwise required for use (or the use of which is not prohibited) by Federal law or regulation.

(C)

An operator of any cable system with more than 100 activated channels shall designate 15 percent of all such channels.

(D)

An operator of any cable system with fewer than 36 activated channels shall not be required to designate channel capacity for commercial use by persons unaffiliated with the operator, unless the cable system is required to provide such channel capacity under the terms of a franchise in effect on

October 30, 1984

(E)

An operator of any cable system in operation on

October 30, 1984

, shall not be required to remove any service actually being provided on

July 1, 1984

, in order to comply with this section, but shall make channel capacity available for commercial use as such capacity becomes available until such time as the cable operator is in full compliance with this section.

(2)

Any Federal agency, State, or franchising authority may not require any cable system to designate channel capacity for commercial use by unaffiliated persons in excess of the capacity specified in paragraph (1), except as otherwise provided in this section.

(3)

A cable operator may not be required, as part of a request for proposals or as part of a proposal for renewal, subject to section 546 of this title, to designate channel capacity for any use (other than commercial use by unaffiliated persons under this section) except as provided in sections 531 and 557 of this title, but a cable operator may offer in a franchise, or proposal for renewal thereof, to provide, consistent with applicable law, such capacity for other than commercial use by such persons.

(4)

A cable operator may use any unused channel capacity designated pursuant to this section until the use of such channel capacity is obtained, pursuant to a written agreement, by a person unaffiliated with the operator.

(5)

For the purposes of this section, the term “commercial use” means the provision of video programming, whether or not for profit.

(6)

Any channel capacity which has been designated for public, educational, or governmental use may not be considered as designated under this section for commercial use for purpose of this section.

(c)

Use of channel capacity by unaffiliated persons; editorial control; restriction on service; rules on rates, terms, and conditions

(1)

If a person unaffiliated with the cable operator seeks to use channel capacity designated pursuant to subsection (b) for commercial use, the cable operator shall establish, consistent with the purpose of this section and with rules prescribed by the Commission under paragraph (4), the price, terms, and conditions of such use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market development of the cable system.

(2)

A cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming, except that a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity and may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of designated channel capacity by an unaffiliated person.

(3)

Any cable system channel designated in accordance with this section shall not be used to provide a cable service that is being provided over such system on

October 30, 1984

, if the provision of such programming is intended to avoid the purpose of this section.

(4)

(A)

The Commission shall have the authority to—

(i)

determine the maximum reasonable rates that a cable operator may establish pursuant to paragraph (1) for commercial use of designated channel capacity, including the rate charged for the billing of rates to subscribers and for the collection of revenue from subscribers by the cable operator for such use;

(ii)

establish reasonable terms and conditions for such use, including those for billing and collection; and

(iii)

establish procedures for the expedited resolution of disputes concerning rates or carriage under this section.

(B)

Within 180 days after

October 5, 1992

, the Commission shall establish rules for determining maximum reasonable rates under subparagraph (A)(i), for establishing terms and conditions under subparagraph (A)(ii), and for providing procedures under subparagraph (A)(iii).

(d)

Right of action in district court; relief; factors not to be considered by court

Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available for use pursuant to this section may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel that such capacity be made available. If the court finds that the channel capacity sought by such person has not been made available in accordance with this section, or finds that the price, terms, or conditions established by the cable operator are unreasonable, the court may order such system to make available to such person the channel capacity sought, and further determine the appropriate price, terms, or conditions for such use consistent with subsection (c), and may award actual damages if it deems such relief appropriate. In any such action, the court shall not consider any price, term, or condition established between an operator and an affiliate for comparable services.

(e)

Petition to Commission; relief

(1)

Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available pursuant to this section may petition the Commission for relief under this subsection upon a showing of prior adjudicated violations of this section. Records of previous adjudications resulting in a court determination that the operator has violated this section shall be considered as sufficient for the showing necessary under this subsection. If the Commission finds that the channel capacity sought by such person has not been made available in accordance with this section, or that the price, terms, or conditions established by such system are unreasonable under subsection (c), the Commission shall, by rule or order, require such operator to make available such channel capacity under price, terms, and conditions consistent with subsection (c).

(2)

In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by an operator, the Commission may also establish any further rule or order necessary to assure that the operator provides the diversity of information sources required by this section.

(3)

In any case in which the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations by any person who is an operator of more than one cable system, the Commission may also establish any further rule or order necessary to assure that such person provides the diversity of information sources required by this section.

(f)

Presumption of reasonableness and good faith

In any action brought under this section in any Federal district court or before the Commission, there shall be a presumption that the price, terms, and conditions for use of channel capacity designated pursuant to subsection (b) are reasonable and in good faith unless shown by clear and convincing evidence to the contrary.

(g)

Promulgation of rules

Notwithstanding sections 541(c) and 543(a) of this title, at such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this subchapter.

(h)

Cable service unprotected by Constitution

Any cable service offered pursuant to this section shall not be provided, or shall be provided subject to conditions, if such cable service in the judgment of the franchising authority or the cable operator is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States. This subsection shall 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.

(i)

Programming from qualified minority or educational programming sources

(1)

Notwithstanding the provisions of subsections (b) and (c), a cable operator required by this section to designate channel capacity for commercial use may use any such channel capacity for the provision of programming from a qualified minority programming source or from any qualified educational programming source, whether or not such source is affiliated with the cable operator. The channel capacity used to provide programming from a qualified minority programming source or from any qualified educational programming source pursuant to this subsection may not exceed 33 percent of the channel capacity designated pursuant to this section. No programming provided over a cable system on

July 1, 1990

, may qualify as minority programming or educational programming on that cable system under this subsection.

(2)

For purposes of this subsection, the term “qualified minority programming source” means a programming source which devotes substantially all of its programming to coverage of minority viewpoints, or to programming directed at members of minority groups, and which is over 50 percent minority-owned, as the term “minority” is defined in section 309(i)(3)(C)(ii) of this title.

(3)

For purposes of this subsection, the term “qualified educational programming source” means a programming source which devotes substantially all of its programming to educational or instructional programming that promotes public understanding of mathematics, the sciences, the humanities, and the arts and has a documented annual expenditure on programming exceeding $15,000,000. The annual expenditure on programming means all annual costs incurred by the programming source to produce or acquire programs which are scheduled to be televised, and specifically excludes marketing, promotion, satellite transmission and operational costs, and general administrative costs.

(4)

Nothing in this subsection shall substitute for the requirements to carry qualified noncommercial educational television stations as specified under section 535 of this title.

(j)

Single channel access to indecent programming

(1)

Within 120 days following

October 5, 1992

, the Commission shall promulgate regulations 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—

(A)

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;

(B)

requiring cable operators to block such single channel unless the subscriber requests access to such channel in writing; and

(C)

requiring programmers to inform cable operators if the program would be indecent as defined by Commission regulations.

(2)

Cable operators shall comply with the regulations promulgated pursuant to paragraph (1).

Source

(June 19, 1934, ch. 652, title VI, § 612, as added Pub. L. 98–549, § 2,

Oct. 30, 1984

, 98 Stat. 2782; amended Pub. L. 102–385, §§ 9, 10(a), (b),

Oct. 5, 1992

, 106 Stat. 1484, 1486; Pub. L. 104–104, title V, § 506(b),

Feb. 8, 1996

, 110 Stat. 137.)

Notes

Editorial Notes

Constitutionality

For information regarding constitutionality of certain provisions of section 612 of act

June 19, 1934

, as added by section 10(b) of Pub. L. 102–385, see Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, Appendix 1, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States.

Amendments

1996—Subsec. (c)(2). Pub. L. 104–104 substituted “a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity and” for “an operator”.

1992—Subsec. (a). Pub. L. 102–385, § 9(a), inserted “to promote competition in the delivery of diverse sources of video programming and” after “purpose of this section is”.

Subsec. (b)(5). Pub. L. 102–385, § 9(d), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “For the purposes of this section—

“(A) the term ‘activated channels’ means those channels engineered at the headend of the cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use; and

“(B) the term ‘commercial use’ means the provision of video programming, whether or not for profit.”

Subsec. (c)(1). Pub. L. 102–385, § 9(b)(1), inserted “and with rules prescribed by the Commission under paragraph (4)” after “purpose of this section”.

Subsec. (c)(4). Pub. L. 102–385, § 9(b)(2), added par. (4).

Subsec. (h). Pub. L. 102–385, § 10(a), inserted “or the cable operator” after “franchising authority” and inserted at end “This subsection shall 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.”

Subsec. (i). Pub. L. 102–385, § 9(c), added subsec. (i).

Subsec. (j). Pub. L. 102–385, § 10(b), added subsec. (j).

Statutory Notes and Related Subsidiaries

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–385 effective 60 days after

Oct. 5, 1992

, see section 28 of Pub. L. 102–385, set out as a note under section 325 of this title.

Effective Date

Section effective 60 days after

Oct. 30, 1984

, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title.

§ 532. Cable channels for commercial use

Cable channels for commercial use

Purpose

Designation of channel capacity for commercial use

Use of channel capacity by unaffiliated persons; editorial control; restriction on service; rules on rates, terms, and conditions

Right of action in district court; relief; factors not to be considered by court

Petition to Commission; relief

Presumption of reasonableness and good faith

Promulgation of rules

Cable service unprotected by Constitution

Programming from qualified minority or educational programming sources

Single channel access to indecent programming

Editorial Notes

Constitutionality

Amendments

Statutory Notes and Related Subsidiaries

Effective Date of 1992 Amendment

Effective Date