Sec. 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:

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    (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

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converts its cable system to an open video system under Sec. 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 Sec. 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 Sec. 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 Sec. 76.1505, 
paragraphs (d)(1), (4), (6) and (8) were revised. This amendment 
contains information collection and recordkeeping requirements and will 
not become effective until approval has been given by the Office of 
Management and Budget.