§ 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]

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