ORDINANCE NO.?N.S.

ESTABLISHING TIME-SEGREGATION AND RELATED COMPLAINT PROCESSING REQUIREMENTS FOR INDECENT CABLE TELEVISION PROGRAMMING ON PUBLIC, EDUCATIONAL AND GOVERNMENTAL CABLE TELEVISION CHANNELS

BE IT ORDAINED by the Council for the City of Berkeley as follows:

Section 1. Chapter 13.33. shall be added to the Berkeley Municipal Code to
read as follows:
13.33.010 Definitions.
For purposes of this ordinance, the following terms shall have the meanings
ascribed to them in this section:
A. "BCM" means Berkeley Community Media, the entity currently designated by the City of Berkeley to manage the public educational and governmental channels provided by the cable television operator in the City of Berkeley pursuant to such operator's franchise with the City of Berkeley.
B. "Indecent" programming means a program which:
1. when viewed as a whole with respect to minors, applying contemporary Berkeley standards, is designed to appeal to prurient interest;
2. contains patently offensive representations or depictions of sexual conduct, normal, or perverted, actual or simulated, or patently offensive representations or depictions of masturbation, excretory functions or lewd exhibition of the genitals; and
3. taken as a whole, lacks serious literary, artistic political or scientific value for minors.
C. "PEG" channels means cable channels devoted to public, educational and governmental programming.
D. "PEG Manager" shall mean the person or entity, such as BCM, designated by the City of Berkeley to manage PEG channels.
E. "Producers" mean the person or entity submitting a program to be shown on a PEG channel.

13/33.020 Findings

The Council finds as follows:
A. The City of Berkeley has granted a franchise to a cable operator for the provision of cable television services.
B. The franchise requires the cable operator to provide PEG channels and authorizes the City to designate a PEG Manager to manage such PEG channels.
C. Berkeley Community Media, BCM, is the entity selected by the City of Berkeley of Berkeley to manage PEG channels pursuant to a contract between it and the City of Berkeley, which provides BCM with funds for this purpose.
D. Such contract provides that BCM must comply with all applicable laws.
E. PEG channels in Berkeley contain a range of programming attractive to families.
F. Some of the programming on such channels is Indecent when viewed from the point of view of the protection of minors.
G. It is not technically possible for families to screen out Indecent programming without screening out the PEG channel entirely and thereby denying their families the ability to view other important public, educational and governmental programs on such channels.
H. Currently, Indecent programs may be shown after 10:00 p.m. at night, at a time when minors may be exposed to such programs.
I. BCM has a policy that it will not exercise control over programming content in the absence of a law which so requires because of BCM's concern that it may violate First Amendment rights or its duties as a PEG channel manager to act in a neutral fashion towards all programming. Based on its
policy, BCM has declined to restrict Indecent programs between 12 midnight and 6:00 a.m. in the absence of a law which so requires.
J. This ordinance is adopted to advance the City of Berkeley's compelling interest in protecting minors from exposure to Indecent programs by requiring that they be shown only between 12 midnight and 6:00 a.m.
K. There is no less restrictive alternative to achieve this goal by, for instance blocking out the PEG channels altogether, because PEG channels have other important and useful programs for families and children.

13.33.030. Indecent Programming-PEG Channels-Time Limitations, Etc.

A. No Indecent program shall be shown on PEG channels established pursuant to the cable television franchise between the City of Berkeley and any cable operator, except between the hours of 12 midnight and 6:00 a.m.
B. BCM, or any successor Peg Manager thereto, shall require any persons or entities submitting a program to be shown on such PEG channels to identify whether the program is Indecent.
C. All Indecent Programming shown on PEG channels shall contain an advisor that such programming is unsuitable for minors.
D. BCM, or any PEG Manager successor thereto, shall establish procedures, approved by the City of Berkeley, to implement the provisions of this ordinance. Such procedures shall include a process for the filing of complaints for programmer's violation of the restrictions contained in this ordinance and remedies in connection therewith. The procedures shall make it clear to producers that they have a duty to evaluate the content of their programs to determine whether they constitute Indecent programming, to advise the PEG Manager of each such Indecent program and if so to place the advisory required by this section on such program or arrange with the PEG Manager to do so. The procedures shall also provide for a grievance process for taking complaints against producers who fail to notify the PEG Manager of the Indecent nature of their programming, to cause such programming to be shown before 12 midnight or after 6:00 a.m. and to fail to contain the advisory required by subsection C.

13.33.040 PEG Manager Compliance-Complaints Against PEG Manager

Any aggrieved person may file a complaint with the City of Berkeley against any PEG Manager or programmer, including BCM, where the violation of this ordinance was caused by the PEG Manager's failure to adopt or follow the procedures required by subsection D. The City may take any appropriate remedial measures if the complaint is sustained, in whole or in part. Complaints involving producers' failure to comply with this ordinance or the procedures adopted pursuant thereto shall not be filed with the City of Berkeley but shall be filed with the PEG Manager pursuant to section 3 (D). Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King, Jr. Way. Within fifteen (15) days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

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