47 U.S.C. § 532 — Cable channels for commercial use

Page 273 TITLE 47—TELECOMMUNICATIONS § 532 enactment of this Act [Oct. 5, 1992], the Federal Com- munications Commission shall promulgate such regula- tions as may be necessary to enable a cable operator of a cable system to prohibit the use, on such system, of any channel capacity of any public, educational, or governmental access facility for any programming which contains obscene material, sexually explicit con- duct, or material soliciting or promoting unlawful con- duct.’’ § 532. Cable channels for commercial use (a) Purpose The purpose of this section is to promote com- petition 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 sys- tems in a manner consistent with growth and development of cable systems. (b) Designation of channel capacity for commer- cial use (1) A cable operator shall designate channel capacity for commercial use by persons unaffili- ated 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 chan- nels shall designate 10 percent of such chan- nels which are not otherwise required for use (or the use of which is not prohibited) by Fed- eral 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 des- ignate 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 re- quired 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 oper- ation 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 sec- tion. (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 op- erator may offer in a franchise, or proposal for renewal thereof, to provide, consistent with ap- plicable law, such capacity for other than com- mercial use by such persons. (4) A cable operator may use any unused chan- nel capacity designated pursuant to this section until the use of such channel capacity is ob- tained, 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 des- ignated 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 per- sons; editorial control; restriction on service; rules on rates, terms, and conditions (1) If a person unaffiliated with the cable oper- ator 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, fi- nancial condition, or market development of the cable system. (2) A cable operator shall not exercise any edi- torial control over any video programming pro- vided 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 ob- scenity, indecency, or nudity and may consider such content to the minimum extent necessary to establish a reasonable price for the commer- cial use of designated channel capacity by an unaffiliated person. (3) Any cable system channel designated in ac- cordance 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 pro- vision of such programming is intended to avoid the purpose of this section. (4)(A) The Commission shall have the author- ity to— (i) determine the maximum reasonable rates that a cable operator may establish pursuant to paragraph (1) for commercial use of des- ignated channel capacity, including the rate charged for the billing of rates to subscribers and for the collection of revenue from sub- scribers by the cable operator for such use; (ii) establish reasonable terms and condi- tions for such use, including those for billing and collection; and (iii) establish procedures for the expedited resolution of disputes concerning rates or car- riage under this section. (B) Within 180 days after October 5, 1992, the Commission shall establish rules for deter- mining maximum reasonable rates under sub- paragraph (A)(i), for establishing terms and con- ditions under subparagraph (A)(ii), and for pro- viding procedures under subparagraph (A)(iii). Page 274 TITLE 47—TELECOMMUNICATIONS § 532 (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 ap- propriate price, terms, or conditions for such use consistent with subsection (c), and may award actual damages if it deems such relief ap- propriate. In any such action, the court shall not consider any price, term, or condition estab- lished between an operator and an affiliate for comparable services. (e) Petition to Commission; relief (1) Any person aggrieved by the failure or re- fusal of a cable operator to make channel capac- ity available pursuant to this section may peti- tion the Commission for relief under this sub- section upon a showing of prior adjudicated vio- lations of this section. Records of previous adju- dications resulting in a court determination that the operator has violated this section shall be considered as sufficient for the showing nec- essary under this subsection. If the Commission finds that the channel capacity sought by such person has not been made available in accord- ance with this section, or that the price, terms, or conditions established by such system are un- reasonable 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 sub- section (c). (2) In any case in which the Commission finds that the prior adjudicated violations of this sec- tion constitute a pattern or practice of viola- tions 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 sec- tion constitute a pattern or practice of viola- tions by any person who is an operator of more than one cable system, the Commission may also establish any further rule or order nec- essary 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 Commis- sion, 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 house- holds to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of informa- tion 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 sec- tion 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, lasciv- ious, filthy, or indecent or is otherwise unpro- tected 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 edu- cational programming sources (1) Notwithstanding the provisions of sub- sections (b) and (c), a cable operator required by this section to designate channel capacity for commercial use may use any such channel ca- pacity 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 edu- cational 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 sub- stantially all of its programming to coverage of minority viewpoints, or to programming di- rected 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 sub- stantially 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 program- ming exceeding $15,000,000. The annual expendi- ture on programming means all annual costs in- curred by the programming source to produce or acquire programs which are scheduled to be tele- vised, and specifically excludes marketing, pro- motion, satellite transmission and operational costs, and general administrative costs. Page 275 TITLE 47—TELECOMMUNICATIONS § 533 (4) Nothing in this subsection shall substitute for the requirements to carry qualified non- commercial educational television stations as specified under section 535 of this title. (j) Single channel access to indecent program- ming (1) Within 120 days following October 5, 1992, the Commission shall promulgate regulations designed to limit the access of children to inde- cent 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 iden- tified by program providers, intended for car- riage 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 regu- lations promulgated pursuant to paragraph (1). (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.) Editorial Notes CONSTITUTIONALITY For information regarding the constitutionality of certain provisions of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Su- preme Court on the Constitution Annotated website, constitution.congress.gov. AMENDMENTS 1996—Subsec. (c)(2). Pub. L. 104–104 substituted ‘‘a cable operator may refuse to transmit any leased ac- cess 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 sec- tion 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 sys- tem for the provision of services generally available to residential subscribers of the cable system, regard- less of whether such services actually are provided, including any channel designated for public, edu- cational, 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 para- graph (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 in- serted at end ‘‘This subsection shall permit a cable op- erator to enforce prospectively a written and published policy of prohibiting programming that the cable oper- ator 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. § 533. Ownership restrictions (a) Cable operator holding license for multi- channel distribution or offering satellite service It shall be unlawful for a cable operator to hold a license for multichannel multipoint dis- tribution service, or to offer satellite master an- tenna television service separate and apart from any franchised cable service, in any portion of the franchise area served by that cable opera- tor’s cable system. The Commission— (1) shall waive the requirements of this para- graph for all existing multichannel multipoint distribution services and satellite master an- tenna television services which are owned by a cable operator on October 5, 1992; (2) may waive the requirements of this para- graph to the extent the Commission deter- mines is necessary to ensure that all signifi- cant portions of a franchise area are able to obtain video programming; and (3) shall not apply the requirements of this subsection to any cable operator in any fran- chise area in which a cable operator is subject to effective competition as determined under section 543(l) of this title. (b) Repealed. Pub. L. 104–104, title III, § 302(b)(1), Feb. 8, 1996, 110 Stat. 124 (c) Promulgation of rules The Commission may prescribe rules with re- spect to the ownership or control of cable sys- tems by persons who own or control other media of mass communications which serve the same community served by a cable system. (d) Regulation of ownership by States or fran- chising authorities Any State or franchising authority may not prohibit the ownership or control of a cable sys- tem by any person because of such person’s own- ership or control of any other media of mass communications or other media interests. Noth- ing in this section shall be construed to prevent any State or franchising authority from prohib- iting the ownership or control of a cable system in a jurisdiction by any person (1) because of such person’s ownership or control of any other cable system in such jurisdiction; or (2) in cir- cumstances in which the State or franchising authority determines that the acquisition of such a cable system may eliminate or reduce competition in the delivery of cable service in such jurisdiction.