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U.S. Code as of:
01/19/04
Section 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) of this
section 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) of this section, 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) of
this section, 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) of this
section.
(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) of this section 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) of
this section, 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) of this section 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).
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