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HomeMy WebLinkAboutTelegraphs Telephones ETC47 § 510 TELEGRAPHS, TELEPHONES, ETC. (b) Process; seizure without process if incident to lawful arrest or search ' Aity property subject to forfeiture to the United States under this section may be seized by the Attorney General of the United States upon process issued pursuant to the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made if the seizure is incident to a lawful arrest or search. (c) Sale of forfeited property All provisions of law relating to— (1) the seizure, summary and judicial forfeiture, and condemnation of proper- ty for violation of the customs laws; (2) the disposition of such property or the proceeds from the sale thereof; (3) the remission or mitigation of such forfeitures; and (4) the compromise of claims with respect to such forfeitures; shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section, except that such seizures and forfeitures shall be limited to the communications device, devices, or components thereof. (d) Disposition of forfeited property • Whenever property is forfeited under this section, the Attorney General of the United States may forward it to the Commission or sell any forfeited property which is not harmful to the public. The proceeds from any such sale shall be deposited in the general fund of the Treasury of the United States. (June 19, 1934, c. 652, Title V, § 510, as added Sept. 13, 1982. Pub. L. 97-259, Title I, § 125, 96 Stat. 1098.) Historical and Statutory Notes Prior Provision. A former section 510 of this title, Act June 19, 1934, c. 652, Title V, § 510, as added May 1I, 1962, Pub. L. 87-448, § 1, 76 Stat. 68, setting forth provisions relating to forfei- tures_for violations of rules and regulations by radio stations operating in common carrier, safety and special radiofields, was repealed by Pub. L. 95-234, § 4, Feb. 21, 1978, 92 Stat. 35. ' Legislative History. For legislative history and purpose of Pub. L. 97-259, see 1982 U.S. Code Cong. and Adm. News, p. 2237. Code of Federal Regulations Amateur radio services, see 47 CFR 97.1 et seq. Aviation services, see 47 CFR 87.1 et seq. Disaster communications services, see 47 CFR 99.1 et seq. Stations on land in the maritime services and Alaska—public fixed stations, see 47 CFR 81.1 et seq. Stations on shipboard in the maritime services, see 47 CFR 83.1 et seq. Library References Forfeitures G=10. Telecommunications e=.445. C.J.S. Forfeitures §§ 8, 9. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision § 104 et seq. SUBCHAPTER V-A—CABLE COMMUNICATIONS PART I—GENEant. PROVISIONS Law Review Commentaries Cable television: Local governmental regulation in perspective. John L. Grow, 7 Pace L.Rev. 81 (1986). Preferred communications: l'reambie to break- up of local cable franchising? Sol Schildhause, 7 Pace L.Rev. i (1986). § 521. Purposes The purposes of this subchapter are to— (1) establish a national policy concerning cable communications; (2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community; �(3) establish guidelines for the exercise ofederal, State, and local authority with respect to the regulation of cable systems; TELEGRAPHS, 'TELEPHONES, ETC. 47 § 521 Note 'I (4) assure, that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public; (5) -establish an orderly process for franchise 'renewal which protects cable operators against unfair denials of renewal where the operator's past perform- ance and proposal for future performance meet the standards established by this subchapter; and (6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems. (June 19, 1934, c. 652, Title VI, § 601, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2780.) Historical and Statutory Notes Effective Date. Section 9(a) of Pub.L. 98-549 provided that: "Except where otherwise expressly provided, the provisions of this Act [enacting this subchapter and section 611 of this title, amending sections 152, 224, 309 and 605 of this title, section 2511 of Title 18, Crimes and Criminal Procedure and section 1805 of Title 50, War and National Defense, and enacting provisions set out as notes under this section and sections 543, 605 and 609, of this title] and the amendments made thereby shall take effect 60 days after the date of enact- ment of this Act [Oct. 30, 1984)." Effect of Cable Communications Policy Act 1984 on Jurisdiction of Federal Communication Commission Respecting Wire or Radio Communi- cations Through Cable Systems. Section 3(b) of Pub.L. 98-549 provided that: "The provisions of this Act [enacting this subchapter and section 611 of this title, amending sections 152, 224, 309 and . 605 of this title, section 2511 of Title 18, Crimes and Criminal Procedure and section 1805 of Title 50, War and National Defense, and enacting pro- visions set out as notes under this section and sections 543, 605 and 609 of this title] and amend- ments made by this Act shall not be construed to affect any jurisdiction the Federal Communica- tions Commission may have under the Communi- cations Act of 1934 [this chapter] with respect to any communication by wire or radio (other than cable service, as defined in section 602(5) of such Act [section 522(5) of this title]) which is provided through a cable system, or persons or facilities engaged in such communications." Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev. (Fla.) 607 (1988). . Bights of consumer under the Cable Communi- cations Policy Act of 1984. Patrick B. McCauley and Laurie Orlando, 65 Mich.B.J. 1112 (1986). The Cable Communications Policy Act of 1984 and content regulation of cable television. Note, 20 New England L.Rev. 779 (1984-1985). The changing regulatory terrain of cable tele- vision. R. Clark Wadlow and Linda M. Well - stein, 35 Cath.U.L.Rev. 705 (1986). Cable television: A new challenge for the "old" First Amendment. 60 St. John's L.Rev, 114 (1985). Cable television franchise fees for general reve- nue: The 1984 Cable Act, Wisconsin law, and the First Amendment. Wis.L.Rev. 1273 (1985). ble television franchise renew•a un e law: A powerful alternative for some municipal officiais. Neil J. Lehto, Detroit CoII.L.Rev. 37 (1988). Contextual regulation of indecency: A happy medium for cable television. 21 Val.U.L.Rev. 193 1986). Expanding that scarcity rationale: The consti' tutionalitv_of nuhjic access requirements in cable franchise agreements. 20 U,Mich.J.C.i.cf. 503 6). e urs men mens and Cablevision: Pre- ferred Communications, Inc. V. City of Los Ange- les. 22 Tulsa L.J. 229 (1986). e signs, ca le sends, Part 1I—Interference from the indecency cases/ Laurence H. Winer, V Fordham L.Rev. 459 (March 1987). Library References. Telecommunications '449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. Notes of Decisions Purpose of subchapter 2 State regulation or control 1 1. State regulation or control The Federal Communications Commission did not exceed its , statutory authority by adopting regulations that establish technical standards to govern the quality of cable television signals and that forbid local authorities from imposing more stringent technical standards. City of New -York v. F.C.C., Dist.Co1.1988, 108 S.Ct. 1637. District court lacked subject matter jurisdiction over cable company's action, seeking declaration that Cable Communications Policy Act of 1984 preempted municipal regulation of cable television rates; preemption argument operated only as pos- sible defense in city's suit in courts of Common- wealth seeking injunctive and other relief from rate increase. Cablevision of Boston Ltd. Partner- ship v. Flynn, D.Mass.I989, 710 F.Supp. 23. Cable Communications Policy Act of 1984, hich established a comprehensive regulatory scheme for the cable industry, preempted Utah Cable Television Programming Decency Act, which gave certain state officials authority to bring nuisance actions against anyone who contin- uously.and knowingly distributed indecent materi- al within the state over any cable.television system or pay -for -viewing television programming. Com- munity Television of Utah, Inc. v. Wilkinson, D.C.Utah 1985, 611 F.Supp. 1099. 47 § 521 Note 1 Neither Cable Communications Policy Act nor FCC decisions preempted town fromenforcing time-limited, mutually agreed upon rate freeze provision in cable television license. Town of Norwood v. Adams --Russell Co., Inc., 1988, 519 N.E.2d 253, 401 Mass. 677. 2. Purpose of subchapter Two predominant objectives of Cable Commu- nications Policy Act are: to make local franchis- TELEGRAPHS, TELEPHONES, ETC. ing process primary means of cable television regulation, and to insure that public receives wid- est possible diversity of information services and sources, in a manner which is responsive to means and interests of local communities. Rollins Ca- blevue, Inc. v. Saienni Enterprises, D.De1.1986, 633 F.Supp. 1315. § 522. Definitions For purposes of this subchapter— (1) the term "affiliate", when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person; (2) the term "basic cable service" means any service tier which includes the retransmission of local television broadcast signals; (3) the term "cable channel" or "channel" means a portion of the electromag- netic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation); (4) the term "cable operator" means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system; (5) the term "cable service" means— (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection of such video programming or other programming service; (6) the term "cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video pro- gramming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of this chapter, except that such facility shall be considered a cable system (other than for purposes of section 541(c) of this title) to the extent such facility is used in the transmission of video programming directly to subscribers; or (D) any facilities of any electric utility used solely for operating its electric utility systems; (7) the term "Federal agency" means any agency of the United States, including the Commission; (8) the term "franchise" means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 546 of this title), issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or opera- tion of a cable system; (9) the term "franchising authority" means any governmental entity empow- ered by Federal, State, or local law to grant a franchise; (10) the term "grade B contour" means the field strength of a television broadcast station computed in accordance with regulations promulgated by the Commission; (11) the term "other programming service" means information that a cable operator makes available to all subscribers generally; 330 1 TELEGRAPHS, TELEPHONES, ETC. 47. §-531 :, (12) the term "person" means an individual, partnership, association, joint- stock company, trust, corporation, or governmental entity; • .. (13) the term "public, educational, or governmental access facilities" means— (A) channel capacity designated. for public, educational, or governmental use; and • (B) facilities and equipment for the use of such channel capacity; • .. (14) the term "service tier" means a category 'of cable service or other services provided by a cable operator and for which a separate "rate is charged by the cable operator; (15) the term "State" means any State, or political subdivision; or agency thereof; and (16) the term "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (June 19, 1934, c. 652, Title VI, § 602, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2780.) halls even though city's franchise was granted .to the other subsidiary, where:the parent had negoti- ated for' the physical facilities to carry the fran- chisee's cable service and was cosignatory' for rental of city's transmission line poles and .the service was delivered through joint efforts of the related companies, the signals being received at the same location. City of Ames, Iowa v. Heri- tage Communications, Inc., C.A.8•(Iowa) 1988, 861 F.2d 185. Cable Communications Policy Act's disclosure and record-keeping provisions applied to cable operator that did not provide two-way cable ser- vice. \Varner v. American Cablevision of Kansas City, Inc.. D.Kan.1988, 699 F.Supp. 851. 2. Franchising authority City was "franchising authority" within mean- ing of Cable Communications Policy Act of 1934, and thus could regulate only to limit of authority granted in Act. City of Burlington v. Mountain Cable Co., Vt.1988, 559 A.2d 153.- Historical 53. Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, sec 1984 U.S. Code Cong. and Adm. News. p. 4655. Library References Telecommunications x449. C.J.S. Telegraphs, Telephones, Radio and Tele- vision §§ 316.1, 316.2. Notes of Decisions 1. Cable operator Cable company and its two subsidiaries were a single operator and a single system, so that city could properly collect franchise fee for service provided by one subsidiary to university residence PART II—USE OF CABLE CHANNELS AND CABLE OWNERSHIP. RESTRICr10NS § 531. Cable channels for public, educational, or governmental use (a) Authority to establish requirements with respect to designation or use of channel capacity A franchising authoritma establish re uirements in a franchise with resp e t to the designation or use of channel capacity or nu Ic, a a_ttona , or governments use only to the extent provided in this section. (b) Authority to require designation for public, educational, or governmental 'lie A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal fora franchise renewal, subject to section 546 of this title, that channel capacity be designated. for public, educational, or governmental use, and channel capacity ,on institutional networks be designated for educational or governmental use, and "" uire rules and •rocedures for the use of the channel ca.acit ; ',t..1. ,rsuant to is sect (c) Enforcement authority . . A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for :services, facilities, or equipment proposed by the cable operator which relate to public, educational, or 331 15 47 § 531 TELEGRAPHS, TELEPHONES, ETC. governmental use of channel capacity, whether or not required by the franchising b authority pursuant to subsection (b) of this section. (d) Promulgation of rules and procedures In the case of any franchise under which channel capacity is designated under subsection (b) of this section, the franchising authority shall prescribe— (1) rules and procedures under which the cable operator is permitted to use such channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated, and (2) rules and procedures under which such permitted use shall cease. (e) Editorial control by cable operator Subject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section. (f) "Institutional network" defined For purposes of this section, the term "institutional network" means a communica- tion network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers. (June 19, 1934, c. 652, Title VI, § 611, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2782.) Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Law Review Commentaries Access to cable, natural monopoly, and the First Amendment. 86 Columbia L.Rev. 1663 (1986). Expanding that scarcity rationale: The consti- tutionality of public access requirements in cable franchise agreements. 20 U.Mich.J.L.Ref. 503 (1986). Quincy Cable and its effect on the access provi- sions of the 1984 Cable Act. Note, 61 Notre Dame L.Rev. 426 (1986). Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev. (Fla.) 607 (1988). The signal cable sends, Part II—Interference from the indecency cases? Laurence H. Winer, LV Fordham L.Rev. 459 (March 1987). Library References Telecommunications x449. C.J.S. Telegraphs, Telephones, Radio and Tele- vision §§ 316.1, 316.2. § 532. Cable channels for commercial use (a) Purpose The purpose of this section is 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 require- ments: (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 332 '1°r t..Gtatwuzio, .iriaJt.► 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— (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. (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 (1) If a person unaffiliated with the cable operator seeks to.use chariner capacity, designated pursuant to subsection (b) of this section for commercial use, the cable;: operator shall establish, consistent with the purpose of this section, 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 s (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 an operator may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of desi Hated 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. - - (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 333 47 § 532 TELEGRAPHS, TELEPHONES, ETC. 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 shotving 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 of n are reasonable and in good faith unless pursuant subsection hown by clearandconvinthis convincing 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 obscene, lewd, etc., or otherwise unprotected by Constitution Any cable service offered pursuant to this section shall not be provided, oryshall be dow•Pnr '.jail ¢nhinot to cnnrHtiaaa ifjuel.gable service in the judgment of the franchisd- tnag authority is obscene, or is in • • 1 . • • •• • . • . • 1 civi• s filth o ir is other • • trotected a • • C• • • •tution of t e United States. (June 19, 1934, c. 652, Title VI, § 612, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2782.) Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30. 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Law Review Commentaries Access to cable, natural monopoly, and the First Amendment. 86 Columbia L.Rev. 1663 (1986). Quincy Cable and its effect on the access provi- sions of the 1984 Cable Act. Note, 61 Notre Dame L.Rev. 426 (1986). The signal cable sends, Part I1—interference from the indecency cases/ Laurence H. Winer, LV Fordham L.Rev. 459 (March 1987). . • 334 TELEGRAPHS, TELEPHONES, ETC. 4'i' 046 Library References Telecommunications X449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. Notes of Decisions 1. Persons entitled to maintain action Cable television subscribers' association was not "person aggrieved" within meaning of Cable Act § 533. Ownership restrictions (a) Persons owning or controlling television station licensees . It shall be unlawful for any person to be a cable operator if such person, directly or through 1 or. more affiliates, owns or controls, the licensee.; of a television broadcast station and the predicted grade B. contour of such station covers any portion of the community served by such operator's cable system. (b) Common carriers; provision of direct video programming; exception; waiver (1) It shall be unlawful for any common carrier, subject in whole or. in part to subchapter II of this chapter, to provide video programming directly to subscribers in its telephone service area, either directly or indirectly through an affiliate owned by, operated by, controlled by, or under common control with, the common carrier. (2) It shall be unlawful for any common carrier, subject in whole or in part to subchapter II of this chapter, to provide channels of communications or pole line conduit space, or other rental arrangements, to any entity which is directly or indirectly owned by, operated by, controlled by, or under common control with such common carrier, if such facilities or arrangements are to be used for, or in connection with, the provision of video programming directly to subscribers in the telephone service area of the common carrier. - (3) This subsection shall not apply to any common carrier to the extent such carrier provides telephone exchange service in any rural area (as defined by the Commission). (4) In those areas where the provision of video programming directly to subscrib,• ers through a cable system demonstrably could not exist except through a cable system owned by, operated by, controlled by, or affiliated with the common carrier involved, or upon other showing of good cause, the Commission may, on petition for waiver, waive the applicability of paragraphs (1) and (2) of this subsection. Any such waiver shall be made in accordance with section'63.56:of title 47,:.Code' of. Federal Regulations (as in effect September 20, 1984) and shall be granted by the Commission upon a finding that the issuance of such waiver is justified by the' particular circumstances demonstrated by the petitioner, taking into account the policy of this subsection. statute, which authorizes action by any. person aggrieved by failure or refusal of cable operator to make channel capacity available for use, but which permits court to order offending -operator to make channel capacity , available, if channel capacity sought is wrongfully. withheld, and, thus, lacked standing for either express or implied right of action. New York Citizens Committee on Cable TV 'v. Manhattan CableTV, Inc.,'S.D.N.Yr' 1986, 651 F.Supp. 802. (c) Promulgation of rules The Commission may prescribe rules with respect to the ownership orrcontrol of cable systems by persons who own or control other media of mass communications .t which serve the same community served by a cable system. (d) Regulation of ownership by States or franchising authorities , Any State or franchising authority may not prohibit the ownership or control of a cable system by any person because of such person's ownership -or control of any media of mass communications or other media interests. (e) Ilolding of ownership interests or exercise of editorial control by States or franchising authorities (1) Subject to paragraph (2), a State or franchising authority may hold any ownership interest in any cable system. (2) Any State or franchising authority shall not exercise' any editorial control regarding the content of any cable service on a cable system in which' such governmental entity holds ownership interest (other than programming on any. 335 47 § 533 TELEGRAPHS, TELEPHONES, ETC. channel designated for educational or governmental use), unless such control is exercised through an entity separate from the franchising authority. (f) Combinations of interests under prior law This section shall not apply to prohibit any combination of any interests held by any•person on July 1, 1984, to the extent of the interests so held as of such hdalh date or if the holding of such interests was not inconsistent with any applicable State law or regulations in effect on that date. (g) "Media of mass communications" defined For purposes of this section, the term "media of mass communications" shall have the meaning given such term under section 309(i)(3)(C)(i) of this title. (June 19, 1934, c. 652, Title VI, § 613, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2785.) Historical and Statutory Notes Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Library References Telecommunications '449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. Notes of Decisions Constitutionality 1 Rules and regulations 2 • 1. Constitutionality Section of Cable Communications Policy Act of 1984 limiting cross -ownership of television station and cable television system in same market, and corresponding Federal Communications Commis- sion regulation, did not violate First Amendment rights of television station owner which was forced to divest itself of part of its interest in cable system. Marsh Media, Ltd. v. F.C.C., C.A.5, 1986, 798 F.2d 772, rehearing denied 802 F.2d 455, certiorari denied 107 S.Ct. 1287, 479 U.S. 1085, 94 L.Ed.2d 145. 2. Rules and regulations Federal Communications Commission's deter- mination that righl:of first refusal which owner of television station acquired when it purchased part- nership interest in cable television system prior to FCC's promulgation of regulation limiting cross - ownership of television station and cable television system in same market was not an ownership interest covered by regulation's grandfather clause was not erroneous. Marsh Media, Ltd. v. F.C.C., C.A.5, 1986, 798 F.2d 772, rehearing denied 802 F.2d 455, certiorari denied 107 S.Ct. 1287, 479 • U.S. 1085, 94 L.Ed.2d 145. PART III -FRANCHISING AND REGULATION § 541. General franchise requirements (a) Authority to award franchises; construction of cable systems over rights-of-way and through easements; conditions for use of easements; equal access to service (1) A franchising authority may award, in accordance with the provisions of this subchapter 1 or more franchises within its jurisdiction. (2) Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure - (A) that the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system; (B) that the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscriber, or a combination of both; and (C) that the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation, or removal of such facilities by the cable operator. (3) In awarding a franchise or franchises, a franchising authority shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. 336 1 L' Lr.A.rsitlr 1JLGr rikfricio, S,v Note 1 (b) Provision of service without franchise; continued provision of service under prior law (1) Except to the extent provided in paragraph (2), a cable operator may not provide cable service without a franchise. (2) Paragraph (1) shall not require any person lawfully providing. "cable service without a franchise on July 1, 1984, to obtain a franchise unless. the franchising authority so requires. (c) Status of cable system as common carrier or utility " . . Any cable system shall not be subject to regulation as a•common carrier or utility' by reason of providing any cable service. (d) Informational tariffs; regulation by States; definition , (1) A State or the Commission may require the filing of informational tariffs for any intrastate communications service provided by a cable system, other than cable service, that would be subject to regulation by' the Commission or any State if offered by a common carrier subject, in whole or in part, to subchapter II. of this chapter. Such informational tariffs shall specify the rates, terms, and conditions for the provision of such service, including whether it is made available to all subscrib-_ ers generally, and shall take effect on the date specified therein, (2) Nothing in this subchapter shall be construed to affect the authority of any State to regulate any cable operator to the extent that such operator provides any communication service other than cable service, whether offered on a common carrier or private contract basis. (3) For purposes of this subsection, the term "State" has the meaning given it in section 153(v) of this title. (e) State regulation of facilities serving subscribers in multiple dwelling units Nothing in this subchapter shall be construed to affect the authority. of any.State to license or otherwise regulate any facility or combination of facilities which serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management and which does not use any public right-of-way. • (June 19, 1934, c. 652, Title VI, § 621, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2786.) Historical and Statutory Notes Effective Date, Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p. 4655. Law Review Commentaries Expanding that scarcity rationale: The consti- tutionality of public access requirements fn cable franchise agreements. 20 U.Mich.J.L.Ref. 503 (1986). Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev, (Fla.) 607 (1988). Library References Telecommunications '499: C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. Notes of Decisions InJunctlon 3 Private right of action 1 Right of access 2 Use of public rights-of-way 4 1. Private right of action . • Implied private right of action 'existed under Cable Communications Policy' Act. •Centel Cable Television Co, of Florida v. Admiral's Cove Asso- ciates, Ltd., C.A.11 (Fla.) 1988, 835 F.2d 1359. Cable television provider had implied • private right of action under Cable'Communications Poli- cy Act against owner of private residential corn• munity within provider's .franchise area to seek enforcement of provider's right•of access to public - utility easements within community for purposes of laying cable. 'Cable TV Fund`'14-A, Ltd. v." Property Owners •Ass'n Chesapeake' Ranch_Es- tates, Inc., D.Md.1989, 706 F.Supp. 422:,.,.... Cable Communications Policy Act did not im- plicitly contain private cause of action io'obtain ' access over public rights-of-way and .through ease- ments; . statute in other places provided for vindi,-t cation of private rights; legislative history did not. indicate intent to grant individuals right to enforce Act or regulations; Act amended; Commtinica tions Act which, vested authority in. Federal Com-". munications Commission; and•.gtiestion.whether.' right to access existed was not traditionally left to: determination by common 'law or state statutory law. Cable Investments, Inc. ,v. Woolley,' M.D. Pa.1987, 680 F.Supp. 174." Franchised cable television operator did not have private right of action tinder Cable Commu- nications Policy 'Act to 'enjoin construction and operation of allegedly' unfranchised rival 'cable' 337 47 § 543 Historical and Statutory- Notes References in Text. For "the effective date of this subchapter', referred to in text, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Effective Date. Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex-' pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Restoration, Retierment and Repricing of Ser- vice Previously Eliminated, Retiered or Repriced. Section 9(b) of Pub.L. 98-549 provided that; "Nothing in section 623 or 624 of the Communi- cations Act of 1934 [this section or section 544 of this title], as added by this Act, shall be construed to allow a franchising authority, or a State or any political subdivision of a State, to require a cable operator to restore, retier, or reprice any cable service which was lawfully eliminated, retiered, or repriced as of September 26, 1984." Legislative History. For legislative history and purpose of Pub.L. 98-549, sec 1984 U.S.Code Cong. and Adm.News, p. Law Review Commentaries Private monopoly and the public interest: An economic analysis of the cable television franchise. Thomas W. Hazlett, 134 U.Pa.L.Rev. 1335 (1986). Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev. (Fla.) 607 (1988). Library References Telecommunications x449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision §§ 316.1, 316.2. TPA l.0 Vnna s.vr Notes of Decisions Basic cable service 3 Contractual limitations 6 Contributions in aid of construction 2 Effective competition 4 Increase approval 1 Jurisdiction '/_ Rate regulation 5 resolution providing that rate would eyed by the for two years or until an increase was app city council provided for increases at future un- specified times and thus did not deprive franchisee of its discretion to increase its rates under the Act. American Television & Communications Corp. v. City of Montevideo, Minn., D.C.Minn.1985, 603 F.Supp. 1376. 2. Contributions In aid of construction Contributions in aid of construction of a cable television system are not "rates" within meaning of federal Cable Communications Policy Act's provision concerning state authority, to regulate rates; hence, Act does not preempt substantive power of a state, as franchisor, to prohibit fran- chisee from charging contributions in aid of con- struction to residents of sparse areas. Housatonic Cable Vision Co. v. Department of Publiclic Utility Control, D.C.Conn.I985, 622 F.Supp. 3. Basic cable service Federal Communications Commission's cable television rate regulation rules were in most re- spects reasonable, except for aspects of redefini- tion of "basic cable service" differently from that in Cable Act, permission of cable systems to automatically pass through any readily identifiable increase or decrease in cost which was entirely attributable to provision of basic service, and stan- dard for measuring what signals would be con- sidered "available." American Civil Liberties Un- ion v. F.C.C., 1987, 823 F.2d 1554,'262 U.S.App. D.C. 244, certiorari denied 108 S.Ct. 1220, 99 L.Ed.2d 421. 1/2. Jurisdiction District court had subject matter jurisdiction over declaratory judgment action initiated by pro- vider of town's cable television services inasmuch as provider was asserting rights under Federal Cable Communications Policy a Communications Ltd. Partnership No. 7 v. Town 1 of Danvers, D.Mass.,1988, 703 F.Supp. 161, amended, reconsideration denied 709 F.Supp. 1. Increase approval Under Cable Communications Policy Act provi- sion expressly requiring that franchise set forth fixed rate for specified period of time, city council 4. Effective competition FCC did not violate lawful obligation to re- spond to significant comments by ignoring request by island of Guam for special, uniquely tailored exception to agency definition of "effective compe- tition" within meaning of regulation exemption. American Civil Liberties Union v. F.C.C., 1987, 823 F.2d 1554, 262 U.S.App.D.C. 244, certiorari denied 108 S.Ct. 1220, 99 L.Ed.2d 421. 5. Rate regulation Provision of license agreement entered into be- tween town and provider of cable television servic- es pursuant to which provider agreed to "freeze" its basic service rates for first two years of opera- tion constituted rate "regulation" within meaning of Cable Communications Policy Act, and was preempted by Act. Nashoba Communications Ltd. Partnership No. 7 v. Town of Danvers, D.Mass.1988, 703 F.Supp. 161, amended, recon- sideration denied 709 F.Supp. 263. 6. Contractual limitations Contract between city and provider of cable television services, which limited provider's right to raise rates for basic cable service in city, violat- ed Cable Communications Policy Act of 1984. City of Burlington v. Mountain Cable Co., Vt. 1988, 559 A.2d 153. § 544. Regulation of services, facilities, and equipment (a) Regulation by franchising authority Any franchising authority may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with this subchapter. 342 (b) Requests for proposals; establishment and enforcement of requirements In the case of any franchise granted after the effective date of this subchapter, the franchising authority, to the extent related to the establishment or operation of a cable system— (1) in its request for proposals for a franchise (including requests for renewal proposals, subject to section 546 of this title), may establish requirements for facilities and equipment, but may not establish requirements for video program- ming or other information services; and (2) subject to section 546 of this title, may enforce any requirements con- tained within the franchise— (A) for facilities and equipment; and (B) for broad categories of video programming or other services. (c) Enforcement authority respecting franchises effective under prior law In the case of any franchise in effect on the effective date of this subchapter, the franchising authority may, subject to section 545 of this title, enforce requirements contained within the franchise for the provision of services, facilities, and equipment, whether or not related to the establishment or operation of a cable system. (d) ''.le-service-obscene;lndecent or otherwise unprotected by Constitution (1) Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, ' s able services are obscene or are otherwise unprotected by the Constitution of the Unis. (2)(A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (B) Subparagraph (A) shall take effect 180 days after the effective date of this subchapter. (e) Technical standards The Commission may establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise. (f) Limitation on regulatory powers of Federal agencies, States, or franchising authorities; exceptions (1) Any Federal agency, State, or franchising authority may not impose require- ments regarding the provision or content of cable services, except as expressly provided in this subchapter. . (2) Paragraph (1) shall not apply to— (A) any rule, regulation, or order issued under any- Federal law, as such rule, regulation, or order (i) was in effect on September 21,:1983, or (ii) may be amended after such date if the rule, regulation, or girder as amended is not inconsistent with the express provisions of this subchapter; and • (B) any rule, regulation, or order under Title 17. (June 19, 1934, c. 652, Title VI, § 624, as added Oct. 80, 1984, Pub.L. 98-549, § 2, 98 Stat. 2789.) Historical and Statutory Notes References In Text. For "the effective date of this subchapter" referred to in text, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Restoration, Retlerment and Repricing of Ser- vice Previously Eliminated, Retiered or Repriced. This section not to be construed to allow a fran- chising authority, or a State or political -subdivi- sion thereof, to require a cable operator to restore, retier or reprice cable service previously eliminat- ed, retiered, or repriced as of Sept. 26, 1984, see section 9(b) of Pub.L. 98-549, set out as a note under section 543 of this title. Effective Date. Section to takeeffect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. 343 4.1 ii 47 § 544 Law Review' Commentaries Regulating cable television in the 1990s.Ste soon man M. Sinel and Paul S. Ryerson, 17 L.Rev. (Fla.) 607 (1988). The signal cable sends, Part I1-1nterference from the indecency LV Fordham L.Rev. Laurence 459 (March 1987). Winer, Library References Telecommunications €449. C.J.S. Telegrah phs, Telephones, Radio, and Tele- vision §§ TELEGRAPHS, TELEPHONES, ETC. preempting local technical standards, for particu- lar class of cable channels, that were more oner- ous that its own. -City of New York 91C.af= 1987, 814 F.2d 720, 259 U.S.App• firmed 108 S.Ct. 1637, 100 L.Ed.2d 48. 1. Construction schedules Federal Cable Communications Policy Act did not remove line extension decisions from the juris- diction of the state as a franchising authority; hence, a state, as franchising authority, May iv - quire that a cable operator construct sahedvin portion of its franchise area on a specificcrschedt of e. Housatonic Cable Vision, Co. v. Dep Public Utility Control, D.C.Conn.1985, 622 F.Supp. 798. 2. Fines, imposition of City cable commission's assessment of fine against holder of cable television franchise for not programming local origination shows produced especially for city residents, in violation of fran- chise agreement, did not violate Cable Act which franchising prevents any federal agency, state, orauthority from imposing requirements regarding content of cable services as expressly provided by Act. Chicago Cable Communications v. Chicago Cable Com'n, N.D.111.1988, 678 F.Supp. Notes of Decisions Construction schedules 1 Fines, imposition of 2 State regulation or control 1 'h. State regulation or control Legislative history of Cable Act provision recognizing cable television franchising authority's power to establish standards governing facilities and equipment which were not inconsistent with those established by Federal Communications Commission did not prevent Commission from § 545. Modification of franchise obligations (a) Grounds for modification by franchising authority; public proceeding; time of decision (1) During the period a franchise is in effect, the cable operator may obtain from the franchising authority modifications of the requirements in such franchise— es or (A) in educational,forngovernmental ay such eaccess ment f facilities or loequipment, uf'the Cable operator demonstrates that (i) it is commercially impracticable cable oh e�atorafor to comply with such requirement, and (ii) the proposal by P modification of such requirement is appropriate because of commercial impracti- cability; or (B) in the case of any such requirement for services, if the cable operator demonstrates that the mix, quality, and level of services required by , the franchise at the time it was granted will be maintained after such modification. (2) Any final decision by a franchising tynder is subsection l be made in a public proceeding. roce Such deeionshallbemadewithin120daysfter receipt of uest bythftbrseriod is extededbymutal agreement of the cable operator and the franchising authority. (b) Judicial proceedings; grounds for modification by court (1) Any cable operator whose request for modification under subsection (a) Of this section has been denied by a final decision of afreshi ithe authori rity may obtain ofection modification of such franchise requirements pursuant 555 of this title. (2) In the case of any proposed modification of a requirement for facilities .or equipment, the court shall grant such modification only if the cable operator demonstrates to the court that— (A) it is commercially impracticable for the operator to comply with such requirement; and because of (B) the terms of the modification requested are appropriate commercial impracticability. (3) In the case of any proposed modification of a requirement for services, the es to the court shall grant mix, qch and level of on only required if the cable by the franchise erator at the time court that the mix, quality, , it was granted will be maintained after 3suc modification. (c) Rearrangement, replacement or removal of service •• . ' 'Notwithstanding subsections (a) and (b) of this sectlon, a cable operator nay aeon 30 days' advance notice to the franchising authority, rearrange, 'replace, or remove- a• particular cable .service required by the franchise if- r. „.; (1) such service is no longer available to the operator; or (2) such service" is available to the operator only upon the payment of a. royalty required under' section'801(b)(2).of T tle,17 which thg cable` oPer�ttok�,can' document— t (A) is substantially in excess Of the amount of such payment required on the date of the operator's offer to provide such service, and ' • t (B) has not been specifically compensated for through a rate increase or, other adjustment. • (d) Rearrangement of particular services from one service tier to -another or other'offering1 of service Notwithstanding subsections (a) and (b) of this section, a cable operator may take such actions to rearrange a particular service from one service tier to another, or otherwise offer the service, if the rates for all of the service'tiers'irivolved':in such` actions are not subject to regulation under section 543 of this title. (e) Requirements for services relating to public, educational, or governmental access A cable operator may not obtain modification under this section' of any require- ment for services relating to public, educational, or governmental access. (0 "Commercially impracticable" defined s. For purposes of this section, the term "commercially impracticable means,' with, respect to any requirement applicable to a cable operator, that it is commercially' impracticable for the operator to comply with such requirementas a result of; a change in conditions which is beyond the control of the operator and .the nonoccur., rence of which was a basic assumption on which the, requirement; was' based:.`•. (June 19, 1934, c. 652, Title VI, § 625, as added Oct. 30, 1984, Pub.L. 98-549, § 2, 98 Stat. 2790.) Historical and Statutory Notes Effective Date, Section to take effect 60 days after Oct. 30, 1984, except where otherwise ex- pressly provided, see section 9(a) ' of Pub.L. 98-549, set but as a note under section 521 of this title. Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S.Code Cong. and Adm.News, p. 4655. Law•Review Commentaries Expanding that scarcity rationale: The consti- tutionality of public access requirements in cable § 546. Renewal franchise agreements.; 20•.U.Mich.J.L.Ref.. 503, (1986). Regulating cable television in the 1990s. Norq man M. Sinel and Paul S.. Ryerson,,17,,Stetsgn L.Rev. (Fla.) 607 (1988). Library References :: ,:r Telecommunications.='449: C.J.S. Telegraphs, Telephones, Radio and 'fele • vision §§ 316;1,1 316 2. , r, t (a)' Commencement of proceedings; time; public notice and participation; purpose.;',,, During the 6 -Month period which begins with the 36th month before the franchik'et expiration, the franchising authority may on its own' initiative',, arid 'shall; at,,'the; request of the' cable operator, commence proceedings which afford the publlc'ln the franchise area appropriate notice and participation for the.purpose,of, „ t;l (1) identifying the future cable -related, community, needs and,,interests; ;and . (2) reviewing the performance of ,the cable operator.. under the-franchisei during the then current franchise term. (b) Submission of renewal proposals; contents;• time • (1) Upon completion of a proceeding' under subsection (a) of this section;'a cable.; operator seeking renewal of a franchisemay; on, its:own.initiative'or at the request - of a franchising authority, submit a proposal for renewal- t i_ . 20011.S.C.A.-12 345 1990 Supp.Pamph.