To inform the American public and to protect children from increasing depictions of indecent and gratuitous and excessive violent material on television, and for other purposes.

March 14, 2005

Mr. ROCKEFELLER (for himself and Mrs. HUTCHISON) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

To inform the American public and to protect children from increasing depictions of indecent and gratuitous and excessive violent material on television, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005'.

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) Increasingly, parents, educators, and families are concerned about the material that is broadcast on television and radio, and the effect such material has on America's children.

(2) Television influences children's perception of the values and behavior that are common and acceptable in society.

(3) Broadcast television, cable television, and video programming are--

(A) uniquely pervasive presences in the lives of all American children; and

(B) readily accessible to all American children.

(4) 85.1 percent of all American homes subscribe to multi-channel video programming.

(5) Complaints about indecent programming have grown exponentially in the last five years.

(6) In 2004, Americans filed over 1,000,000 complaints with the Federal Communications Commission about indecent programming.

(7) According to reports from the Parents Television Council, indecent and violent video programming on cable television is pervasive.

(8) Studies also show that parents are increasingly concerned. According to the Kaiser Family Foundation, more than 4 out of 5 parents are concerned that their children are being exposed to too much sex on television.

(9) Violent video programming influences children, as does, indecent programming.

(10) The American Association of Pediatrics, the American Psychological Association, the American Medical Association, and the U.S. Surgeon General have all documented the harm from watching excessive television violence on children.

(11) There is empirical evidence that children exposed to violent video programming at a young age have a higher tendency to engage in violent and aggressive behavior later in life than those children not so exposed.

(12) There is empirical evidence that children exposed to violent video programming have a greater tendency to assume that acts of violence are acceptable behavior and therefore to imitate such behavior.

(13) There is empirical evidence that children exposed to violent video programming have an increased fear of becoming a victim of violence, resulting in increased self-protective behaviors and increased mistrust of others.

(14) There is a compelling governmental interest in limiting the negative influences of violent video programming on children.

(15) A significant amount of violent video programming that is readily accessible to minors remains unrated specifically for violence and therefore cannot be blocked solely on the basis of its violent content.

(16) Age-based ratings that do not include content rating for violence do not allow parents to block programming based solely on violent content thereby rendering ineffective any technology-based blocking mechanism designed to limit violent video programming.

(17) Technology-based solutions, such as the V-chip, may be helpful in protecting some children, but cannot achieve the compelling governmental interest in protecting all children from violent video programming when parents are only able to block programming that has, in fact, been rated for violence.

(18) Restricting the hours when violent video programming can be shown to protect the interests of children whose parents are unavailable, unable to supervise their children's viewing behavior, do not have the benefit of technology-based solutions, are unable to afford the costs of technology-based solutions, or are unable to determine the content of those shows that are only subject to age-based ratings.

(19) After further study, pursuant to a rulemaking, the Federal Communications Commission may conclude that content-based ratings and blocking technology do not effectively protect children from the harm of violent video programming.

(20) If the Federal Communications Commission reaches the conclusion described in paragraph (19), the channeling of violent video programming will be the least restrictive means of limiting the exposure of children to the harmful influences of violent video programming.

SEC. 3. DEFINITIONS.

As used in this Act:

(1) COMMISSION- The term `Commission' means the Federal Communications Commission.

(2) MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR- The term `multichannel video programming distributor' has the same meaning given such term in section 602 of the Communications Act of 1934 (47 U.S.C. 522).

(3) OTHER PROGRAMMING SERVICE- The term `other programming service' has the same meaning given such term in section 602 of the Communications Act of 1934 (47 U.S.C. 522).

SEC. 4. EFFECTIVENESS OF MEASURES PROTECTING CHILDREN FROM INDECENT AND VIOLENT VIDEO PROGRAMMING.

(a) Assessment- The Commission shall assess--

(1) the technological and practical effectiveness of statutory and regulatory measures that require television broadcast station licensees and multichannel video programming distributors to rate and encode programming that could be blocked by parents, including use of the technology required by the Commission's Report and Order, ET Docket 97-206, under section 303(x) of the Communications Act of 1934 (47 U.S.C. 303(x)), in accomplishing their intended purposes;

(2)(A) the prevalence of violent programming on television; and

(B) the effectiveness of the current system for rating and encoding violent television programming, including--

(i) an assessment of consumer awareness of the current ratings system; and

(ii) an assessment of whether current ratings are self-administered or performed by independent organizations; and

(3) the technological and practical effectiveness of measures used by multichannel video programming distributors to protect children from exposure to--

(A) indecent video programming; and

(B) gratuitous and excessively violent video programming.

(b) Reports- Not later than 60 days after the date of enactment of this Act and annually thereafter, the Commission shall report its findings from the assessments made under subsection (a) to the Committee on Commerce, Science, and Transportation of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.

(c) Rulemaking Proceeding-

(1) IN GENERAL- If the Commission determines, on the basis of an assessment under subsection (a), that a measure described in subsection (a) is not effective in protecting children from exposure to gratuitous and excessively violent video programming on television broadcasts, or from exposure to indecent video programming or gratuitous and excessively violent video programming carried by multichannel video programming distributors, then the Commission shall initiate and conclude (not later than 270 days after the date of that determination) a rulemaking proceeding--

(A) to prohibit television broadcast station licensees from broadcasting gratuitous and excessively violent programming during the hours when children are reasonably likely to comprise a substantial portion of the audience if the Commission's determination relates to measures applicable to such broadcast television programming; or

(B) to adopt measures to protect children from indecent video programming, or gratuitous and excessively violent video programming, as the case may be, carried by multichannel video programming distributors during the hours when children are reasonably likely to comprise a substantial portion of the audience if the Commission's determination relates to measures applicable to such multichannel video programming.

(2) EXEMPTIONS- The Commission may exempt from any prohibition or measure promulgated under paragraph (1)--

(A) video programming the broadcast or carriage of which does not conflict with the objective of protecting children from access to--

(i) indecent programming; or

(ii) gratuitous and excessively violent video programming; and

(B) premium and pay-per-view services.

(d) Enforcement- The forfeiture penalties established by section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) shall apply to a violation of any regulation promulgated under subsection (c) in the same manner as if it were a violation of a provision of that Act subject to a forfeiture penalty under section 503 of that Act.

(e) Definitions- In this section:

(1) GRATUITOUS AND EXCESSIVELY VIOLENT VIDEO PROGRAMMING- The Commission shall define the term `gratuitous and excessively violent video programming' for purposes of this section. In defining it, the Commission--

(A) may include matter that is excessive or gratuitous violence within the meaning of the 1992 Broadcast Standards for the Depiction of Violence in Television Programs, December, 1992; and

(B) shall take into account the findings set forth in section 551(a) of the Telecommunications Act of 1996 (47 U.S.C. 303 note).

(2) HOURS WHEN CHILDREN ARE REASONABLY LIKELY TO COMPRISE A SUBSTANTIAL PORTION OF THE AUDIENCE- The Commission shall define the term `hours when children are reasonably likely to comprise a substantial portion of the audience' for purposes of this section.

(3) INDECENT VIDEO PROGRAMMING- The Commission shall define the term `indecent video programming' for purposes of this section.

(4) TELEVISION BROADCAST STATION LICENSEE- The term `television broadcast station licensee' means the licensee or permittee of a television broadcast station licensed or permitted by the Federal Communications Commission under title III of the Communications Act of 1934 (47 U.S.C. 301 et seq.).

SEC. 5. IMPROVED ENFORCEMENT OF INDECENCY ON BROADCAST PROGRAMMING.

(a) In General- Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is amended--

(1) by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively;

(2) by inserting after subparagraph (B) the following new subparagraph:

`(C) Notwithstanding subparagraph (A), if the violator is--

`(i)(I) a broadcast station licensee or permittee; or

`(II) an applicant for any broadcast license, permit, certificate, or other instrument or authorization issued by the Commission; and

`(ii) determined by the Commission under paragraph (1) to have broadcast obscene, indecent, or profane language or images,

the amount of any forfeiture penalty determined under this subsection shall not exceed $500,000, with each utterance constituting a separate violation, except that the amount assessed a licensee or permitee for any number of violations in a given 24-hour time period shall not exceed a total of $3,000,000. In determining the amount of any forfeiture penalty under this subparagraph, the Commission, in addition to the elements identified in subparagraph (E), shall take into account the violator's ability to pay, including such factors as the revenue and profits of the broadcast stations that aired the obscene, indecent, or profane language and the size of the markets in which these stations are located.'; and

(3) in subparagraph (D), as redesignated by paragraph (1), by striking `subparagraph (A) or (B)' and inserting `subparagraph (A), (B), or (C)'.

(b) Additional Factors in Indecency Penalties; Exception- Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)), as amended by subsection (a) of this section, is amended by adding at the end the following:

`(F) In the case of a violation in which the violator is determined by the Commission under paragraph (1) to have uttered obscene, indecent, or profane material, the Commission shall take into account, in addition to the matters described in subparagraph (E), the following factors with respect to the degree of culpability of the violator:

`(i) Whether the material uttered by the violator was live or recorded, scripted or unscripted.

`(ii) Whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming would contain obscene, indecent, or profane material.

`(iii) If the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming.

`(iv) The size of the viewing or listening audience of the programming.

`(v) The size of the market.

`(vi) Whether the violation occurred during a children's television program (as such term is used in the Children's Television Programming Policy referenced in section 73.4050(c) of the Commission's regulations (47 C.F.R. 73.4050(c)) or during a television program rated TVY, TVY7, TVY7FV, or TVG under the TV Parental Guidelines as such ratings were approved by the Commission in implementation of section 551 of the Telecommunications Act of 1996, Video Programming Ratings, Report and Order, CS Docket No. 97-55, 13 F.C.C. Rcd. 8232 (1998)), and, with respect to a radio broadcast station licensee, permittee, or applicant, whether the target audience was primarily comprised of, or should reasonably have been expected to be primarily comprised of, children.

`(G) The Commission may double the amount of any forfeiture penalty if the Commission determines additional factors are present which are aggravating in nature, including--

`(i) whether the material uttered by the violator was recorded or scripted;

`(ii) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming would contain obscene, indecent, or profane material;

`(iii) whether the violator failed to block live or unscripted programming;

`(iv) whether the size of the viewing or listening audience of the programming was substantially larger than usual, such as a national or international championship sporting event or awards program; and

`(v) whether the violation occurred during a children's television program (as defined in subparagraph (F)(vi)).

`(H) For purposes of this section, the Commission shall have the authority to impose a forfeiture penalty on any broadcast station (as defined in section 153), network station, nationally distributed superstation, or television network (as those terms are defined in section 339).'.

(c) Public Hearings for Violations of Indecency Prohibitions- Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is amended by adding at the end the following new subsection:

`(c) Public Hearings for Violations of Indecency Prohibitions-

`(1) IN GENERAL- In any proceeding initiated under this section in which the Commission issues a notice of apparent liability, but prior to its imposition of a forfeiture penalty, the Commission or designees of the Commission shall conduct public hearings or forums at the discretion of the Commission or its designees, at any time and place the Commission or its designees is able to secure facilities and witnesses, for the purpose of carrying out the duties of the Commission and to ascertain the concerns and interests of the affected viewing communities exposed to the broadcast.

`(2) COMBINED HEARINGS- If a broadcast results in the initiation of multiple proceedings and the issuance of multiple notices of apparent liability, but prior to the imposition of multiple forfeiture penalties, the Commission or its designee may combine the hearings required under paragraph (1).'.

SEC. 6. LOCAL BROADCASTING AUTHORITY TO PREEMPT PROGRAMMING.

Part I of title III of the Communications Act of 1934 (47 U.S.C. 301 et seq.) is amended by adding at the end the following:

`SEC. 340. LOCAL BROADCASTING AUTHORITY TO PREEMPT PROGRAMMING DEEMED OBSCENE OR INDECENT.

`(a) Local Broadcaster Ability to Review Programming in Advance- A broadcast station licensee or permittee that receives programming from a network organization, but that is not owned or controlled, or under common ownership or control with, such network organization, shall be given reasonable opportunity to review all recorded or scripted programming in advance.

`(b) Authority to Preempt- A broadcast station licensee or permittee described in subsection (a)--

`(1) may decide not to broadcast, or otherwise preempt, in whole or in part and without penalty, any programming that it reasonably believes depicts or describes--

`(A) obscene, indecent, profane, or gratuitous and excessively violent material; or

`(B) activities that would be patently offensive as measured by the community standards of the community in which they operate; and

`(2) shall notify, in advance, the network organization of any decision not to broadcast, or otherwise preempt, any programming under paragraph (1).

`(c) Exemption From Penalty- A broadcast station licensee or permittee described in subsection (a) shall not be subject to a forfeiture penalty under section 503(b)(2) for the broadcast of a program found to be in violation of section 503(b)(1), if the broadcast station licensee or permittee prior to such broadcast was--

`(1) required by a network organization to broadcast the program which was recorded or scripted, regardless of such broadcast station licensee or permittee's decision not to broadcast, or otherwise preempt, the program under subsection (b);

`(2) not provided a reasonable opportunity to review the program; or

`(3) required to broadcast the program which was unscripted, live, or otherwise presented without a time delay blocking mechanism.

`(d) Limitation- Nothing in this section shall preclude the imposition of a forfeiture penalty under section 503(b)(2) against a network organization or its owned and operated affiliate.

`(e) Definition- The Commission shall by rule define the term `network organization' for purposes of this section.'.

SEC. 7. WARNINGS BASED ON CONTENT OF PROGRAMMING.

Part I of title III of the Communications Act of 1934 (47 U.S.C. 301 et seq.), as amended by section 6, is amended by adding at the end the following:

`SEC. 341. WARNINGS BASED ON CONTENT OF PROGRAMMING.

`(a) In General- Each television and radio broadcast licensee, multichannel video programming distributor, or other programming service shall provide a warning of the specific content of each recorded or scripted program it broadcasts.

`(b) Warning Standards- A warning provided under subsection (a) shall--

`(1) include information regarding the language content, sexual content, and violence content of the program to be broadcast or distributed; and

`(2) be broadcast or distributed so as--

`(A) to appear in both visible and audible form;

`(B) to appear full screen for 30 seconds at the beginning of the program, and every 30 minutes thereafter in the case of a program in excess of 30 minutes in length; and

`(C) to advise viewers of their ability to block any such program, including programs containing gratuitous and excessively violent material, using V-chip technology to block display of programs with a common rating required under subsection (x) of section 303.

`(c) Review- The Commission shall, from time to time, review the warnings on the content of broadcast programming required under this section for the purpose of assuring that such warnings meet the requirements of this section.

`(d) Definitions- As used in this section, the terms `multichannel video programming distributor' and `other programming service' have the same meaning given such terms in section 602.

`(e) Limitation- Nothing in this section shall be deemed or construed to relieve, preclude, or obviate the application of the ratings standards set forth in the TV Parental Guidelines (Video Programming Ratings, Report and Order, CS Docket No. 97-55, 13 F.C.C. Rcd. 8232 (1998)) as such voluntary ratings were established by the National Association of Broadcasters, the National Cable Television Association, and the Motion Picture Association of America and approved by the Commission in implementation of section 551.'.

SEC. 8. ASSESSMENT OF THE EFFECTIVENESS OF VOLUNTARY RATING STANDARDS.

The Commission shall--

(1) assess the effectiveness of measures designed to provide parents with timely information about the rating of upcoming broadcast programming under the TV Parental Guidelines (Video Programming Ratings, Report and Order, CS Docket No. 97-55, 13 F.C.C. Rcd. 8232 (1998)) as such voluntary ratings were established by the National Association of Broadcasters, the National Cable Television Association, and the Motion Picture Association of America and approved by the Commission in implementation of section 551 of the Telecommunications Act of 1996;

(2) assess the technical feasibility of developing ratings systems from alternative sources; and

(3) not later than 180 days after the date of enactment of this Act, report its findings based on the assessment under paragraphs (1) and (2) to the Committee on Commerce, Science, and Transportation of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.

SEC. 9. CHILDREN'S PROGRAMMING REQUIREMENTS.

(a) Increase in Amount of Educational and Informational Programming for Children-

(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Commission shall promulgate regulations in accordance with section 102(a) of the Children's Television Act of 1990 (47 U.S.C. 303a(a)), to require that each television broadcast licensee broadcast not less than 6 hours of programming specifically designed to serve the educational and informational needs of children during hours when children are reasonably likely to comprise a substantial portion of the audience.

(2) PROPORTIONAL INCREASE FOR DIGITAL TELEVISION MULTICASTS- In response to the requirements of section 309(j)(14), the Commission shall promulgate regulations in accordance with section 102(a) of the Children's Television Act of 1990 (47 U.S.C. 303a(a)), to require each television broadcast licensee providing digital multicasts to provide an amount of time to broadcast programming specifically designed to serve the educational and informational needs of children during hours when children are reasonably likely to comprise a substantial portion of the audience in the same ratio to its total amount of time provided to such children's programming on its main stream under paragraph (1) bears to the total amount of time provided to all programming during the hours when children are reasonably likely to comprise a substantial portion of the audience.

(b) Report- The Commission shall amend its regulations to require each television broadcast licensee to file, regularly, a report on how it met, for the year in review, its obligations to serve the educational and informational needs of children in accordance with section 102(a) of the Children's Television Act of 1990 (47 U.S.C. 303a(a)).

(c) Website Requirement- The Commission shall amend its regulations to require each television broadcast licensee for which there is a publicly accessible website on the Internet--

(1) to make its report available to the public on that website; or

(2) to provide a hyperlink on that website to the report on the Commission's website.

SEC. 10. REINSTATEMENT OF VOLUNTARY CODE OF CONDUCT.

(a) Voluntary Industry Code of Conduct Governing Content of Broadcast Programming- It is the sense of the Congress that each television and radio broadcast licensee, multichannel video programming distributor, or other programming service should reinstitute or adopt, as the case may be, and faithfully comply with, the provisions set forth in the `Television Code of the National Association of Broadcasters' as adopted on December 6, 1951, with amendments thereafter, by the Television Board of the National Association of Broadcasters, formerly known as the National Association of Radio and Television Broadcasters.

(b) Antitrust Exemption-

(1) IN GENERAL- The antitrust laws as defined in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12) and the law of unfair competition under section 5 of the Federal Trade Commission Act (15 U.S.C. 45) shall not apply to any joint discussion, consideration, review, action, or agreement by or among television and radio broadcast licensees, multichannel video programming distributors, or other programming services for the purpose of, and limited to, developing and disseminating voluntary guidelines designed to provide a code of conduct regarding the content of broadcast programs.

(2) EXCEPTION- The exemption provided for in this subsection shall not apply to any joint discussion, consideration, review, action, or agreement which results in a boycott of any person, corporation, advertiser, or industry.

SEC. 11. PREMIUM AND PAY-PER-VIEW CHANNELS EXEMPT.

(a) In General- Nothing in this Act shall be deemed or construed to apply to any premium or pay-per-view service.

(b) Definition- For the purpose of this section, the term `premium or pay-per-view service' shall mean any video programming provided by a multichannel video programming distributor that is offered on a per channel or per program basis.

END