§  76.1505   Public, educational and governmental access.

   (a) An open video system operator shall be subject to public,
   educational and governmental access requirements for every cable
   franchise area with which its system overlaps.

   (b) An open video system operator must ensure that all subscribers
   receive any public, educational and governmental access channels within
   the subscribers' franchise area.

   (c) An open video system operator may negotiate with the local cable
   franchising authority of the jurisdiction(s) which the open video
   system serves to establish the open video system operator's obligations
   with respect to public, educational and governmental access channel
   capacity, services, facilities and equipment. These negotiations may
   include the local cable operator if the local franchising authority,
   the open video system operator and the cable operator so desire.

   (d) If an open video system operator and a local franchising authority
   are unable to reach an agreement regarding the open video system
   operator's obligations with respect to public, educational and
   governmental access channel capacity, services, facilities and
   equipment within the local franchising authority's jurisdiction:

   (1) The open video system operator must satisfy the same public,
   educational and governmental access obligations as the local cable
   operator by providing the same amount of channel capacity for public,
   educational and governmental access and by matching the local cable
   operator's annual financial contributions towards public, educational
   and governmental access services, facilities and equipment that are
   actually used for public, educational and governmental access services,
   facilities and equipment. For in-kind contributions (e.g., cameras,
   production studios), the open video system operator may satisfy its
   statutory obligation by negotiating mutually agreeable terms with the
   local cable operator, so that public, educational and governmental
   access services to the community is improved or increased. If such
   terms cannot be agreed upon, the open video system operator must pay
   the local franchising authority the monetary equivalent of the local
   cable operator's depreciated in-kind contribution, or, in the case of
   facilities, the annual amortization value. Any matching contributions
   provided by the open video system operator must be used to fund
   activities arising under Section 611 of the Communications Act.

   (2) The local franchising authority shall impose the same rules and
   procedures on an open video system operator as it imposes on the local
   cable operator with regard to the open video system operator's use of
   channel capacity designated for public, educational and governmental
   access use when such capacity is not being used for such purposes.

   (3) The local cable operator is required to permit the open video
   system operator to connect with its public, educational and
   governmental access channel feeds. The open video system operator and
   the cable operator may decide how to accomplish this connection, taking
   into consideration the exact physical and technical circumstances of
   the cable and open video systems involved. If the cable and open video
   system operator cannot agree on how to accomplish the connection, the
   local franchising authority may decide. The local franchising authority
   may require that the connection occur on government property or on
   public rights of way.

   (4) The costs of connection to the cable operator's public, educational
   and governmental access channel feed shall be borne by the open video
   system operator. Such costs shall be counted towards the open video
   system operator's matching financial contributions set forth in
   paragraph (d)(4) of this section.

   (5) The local franchising authority may not impose public, educational
   and governmental access obligations on the open video system operator
   that would exceed those imposed on the local cable operator.

   (6) Where there is no existing local cable operator, the open video
   system operator must make a reasonable amount of channel capacity
   available for public, educational and governmental use, as well as
   provide reasonable support for services, facilities and equipment
   relating to such public, educational and governmental use. If a
   franchise agreement previously existed in that franchise area, the
   local franchising authority may elect either to impose the previously
   existing public, educational and governmental access obligations or
   determine the open video system operator's public, educational and
   governmental access obligations by comparison to the franchise
   agreement for the nearest operating cable system that has a commitment
   to provide public, educational and governmental access and that serves
   a franchise area with a similar population size. The local franchising
   authority shall be permitted to make a similar election every 15 years
   thereafter. Absent a previous franchise agreement, the open video
   system operator shall be required to provide channel capacity,
   services, facilities and equipment relating to public, educational and
   governmental access equivalent to that prescribed in the franchise
   agreement(s) for the nearest operating cable system with a commitment
   to provide public, educational and governmental access and that serves
   a franchise area with a similar population size.

   Note to paragraph (d)(6): This paragraph shall apply, for example, if a
   cable operator converts its cable system to an open video system under
   § 76.1501.

   (7) The open video system operator must adjust its system(s) to comply
   with new public, educational and governmental access obligations
   imposed by a cable franchise renewal; provided, however, that an open
   video system operator will not be required to displace other
   programmers using its open video system to accommodate public,
   educational and governmental access channels. The open video system
   operator shall comply with such public, educational and governmental
   access obligations whenever additional capacity is or becomes
   available, whether it is due to increased channel capacity or decreased
   demand for channel capacity.

   (8) The open video system operator and/or the local franchising
   authority may file a complaint with the Commission, pursuant to our
   dispute resolution procedures set forth in § 76.1514, if the open video
   system operator and the local franchising authority cannot agree as to
   the application of the Commission's rules regarding the open video
   system operator's public, educational and governmental access
   obligations under paragraph (d) of this section.

   (e) If an open video system operator maintains an institutional
   network, as defined in Section 611(f) of the Communications Act, the
   local franchising authority may require that educational and
   governmental access channels be designated on that institutional
   network to the extent such channels are designated on the institutional
   network of the local cable operator.

   (f) An open video system operator shall not exercise any editorial
   control over any public, educational, or governmental use of channel
   capacity provided pursuant to this subsection, provided, however, that
   any open video system operator may prohibit the use on its system of
   any channel capacity of any public, educational, or governmental
   facility for any programming which contains nudity, obscene material,
   indecent material as defined in § 76.701(g), or material soliciting or
   promoting unlawful conduct. For purposes of this section, "material
   soliciting or promoting unlawful conduct" shall mean material that is
   otherwise proscribed by law. An open video system operator may require
   any access user, or access manager or administrator agreeing to assume
   the responsibility of certifying, to certify that its programming does
   not contain any of the materials described above and that reasonable
   efforts will be used to ensure that live programming does not contain
   such material.

   [ 61 FR 28708 , June 5, 1996, as amended at  61 FR 43176 , Aug. 21, 1996]

   Effective Date Note:   At  61 FR 43176 , Aug. 21, 1996, in § 76.1505,
   paragraphs (d)(1), (4), (6), and (8) were revised. These paragraphs
   contain information collection and recordkeeping requirements and will
   not become effective until approval has been given by the Office of
   Management and Budget.