To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language.

January 21, 2004

Mr. UPTON (for himself, Mr. MARKEY, Mr. TAUZIN, Mr. DINGELL, Mr. BILIRAKIS, Mr. BARTON of Texas, Mr. STEARNS, Mr. GILLMOR, Mr. BASS, Mr. GREENWOOD, Mr. BURR, Mr. BLUNT, Mr. SHIMKUS, Mr. TERRY, Mr. WELDON of Pennsylvania, Mr. WOLF, Mr. SMITH of Texas, Mr. GREEN of Texas, Mrs. WILSON of New Mexico, Mr. GORDON, Mr. WHITFIELD, Mrs. BONO, Ms. MCCARTHY of Missouri, Mr. WYNN, Mrs. CUBIN, and Mr. PITTS) introduced the following bill; which was referred to the Committee on Energy and Commerce

March 9, 2004

Additional sponsors: Mr. EHLERS, Mr. MATHESON, Mr. JONES of North Carolina, Mr. EVERETT, Mr. ROGERS of Michigan, Mrs. NORTHROP, Mr. OSBORNE, Mr. LEWIS of Kentucky, Mr. BARRETT of South Carolina, Mr. ROSS, Mr. HINCHEY, Mr. BAKER, Mr. BEREUTER, Mr. FORBES, Mr. OXLEY, Mr. NETHERCUTT, Ms. KAPTUR, Mrs. MYRICK, Mr. DEAL of Georgia, Mr. SKELTON, Mr. SPRATT, Mr. COSTELLO, Mr. SMITH of Michigan, Mr. TIBERI, Mr. FERGUSON, Mr. GREEN of Wisconsin, Mr. HAYES, Ms. CARSON of Indiana, Ms. DELAURO, Mr. TIAHRT, Mrs. MILLER of Michigan, Mrs. JOHNSON of Connecticut, Mr. SCOTT of Georgia, Mr. SHADEGG, Mr. TURNER of Texas, Mr. LINDER, Mr. ROGERS of Alabama, Mr. BERRY, Mr. SIMMONS, Mr. KENNEDY of Minnesota, Mr. CALVERT, Mr. GARY G. MILLER of California, Mr. CAMP, Mr. MCINTYRE, Mr. HOEKSTRA, Mr. TAYLOR of North Carolina, Mr. BURGESS, Mr. OLVER, Mr. KNOLLENBERG, Mr. LATHAM, Ms. ESHOO, Mr. NEY, Mr. BOEHLERT, Mr. BUYER, Mr. TOOMEY, Mr. PETRI, Mr. TURNER of Ohio, Mr. TAYLOR of Mississippi, Mr. DOOLITTLE, Mr. CULBERSON, Mr. NEUGEBAUER, Mr. SOUDER, Mr. CARTER, Mr. HERGER, Mr. DAVIS of Florida, Mr. BACHUS, Mr. GONZALEZ, Mr. AKIN, Mr. JOHNSON of Illinois, Mr. ETHERIDGE, Ms. HART, Mr. SANDLIN, Mr. SHUSTER, Mr. COLLINS, Mr. HUNTER, Mr. DEUTSCH, Mr. WALDEN of Oregon, Mr. SAM JOHNSON of Texas, Mr. BEAUPREZ, Mr. QUINN, Mr. FRELINGHUYSEN, Mr. RYUN of Kansas, Mrs. JO ANN DAVIS of Virginia, Mr. RUSH, Mr. GOODLATTE, Mr. GOODE, Mr. WICKER, Mr. COLE, Mr. CRAMER, Mr. WELDON of Florida, Mr. PRICE of North Carolina, Mr. BRADLEY of New Hampshire, Mr. HASTINGS of Washington, Mr. MILLER of Florida, Mr. BOOZMAN, Mr. HOLDEN, Mr. KIRK, Mr. HALL, Ms. MAJETTE, Mr. PUTNAM, Mr. LATOURETTE, Mr. WAMP, Mr. ADERHOLT, Mr. MURPHY, Mr. SESSIONS, Mr. WILSON of South Carolina, Mr. BONNER, Mr. SMITH of New Jersey, Ms. ROYBAL-ALLARD, Ms. GRANGER, Mr. OTTER, Mr. NORWOOD, Mr. PICKERING, Mr. SHAYS, Mr. SIMPSON, Mr. MANZULLO, Mr. BOYD, Mr. KLINE, Mr. STENHOLM, and Mr. KING of Iowa.

March 9, 2004

Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on January 21, 2004]

To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language.

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 `Broadcast Decency Enforcement Act of 2004'.

SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, AND PROFANE BROADCASTS.

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) 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 the violator is determined by the Commission under paragraph (1) to have broadcast obscene, indecent, or profane material, the amount of any forfeiture penalty determined under this section shall not exceed $500,000 for each violation.'; and

(3) in subparagraph (D), as redesignated by paragraph (1) of this subsection--

(A) by striking `subparagraph (A) or (B)' and inserting `subparagraph (A), (B), or (C)'; and

(B) by adding at the end the following: `Notwithstanding the preceding sentence, if the violator is determined by the Commission under paragraph (1) to have uttered obscene, indecent, or profane material (and the case is not covered by subparagraph (A), (B), or (C)), the amount of any forfeiture penalty determined under this section shall not exceed $500,000 for each violation.'.

SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; EXCEPTION.

Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is further amended by adding at the end (after subparagraph (E) as redesignated by section 2(1) of this Act) the following new subparagraphs:

`(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:

`(i) With respect to the degree of culpability of the violator, the following:

`(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 may 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; and

`(V) whether the programming was part of a children's television program as described in the Commission's children's television programming policy (47 CFR 73.4050(c)).

`(ii) With respect to the violator's ability to pay, the following:

`(I) whether the violator is a company or individual; and

`(II) if the violator is a company, the size of the company and the size of the market served.

`(G) 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 not be subject to a forfeiture penalty under this subsection for broadcasting obscene, indecent, or profane material, if--

`(i) such material was within live or recorded programming provided by the network organization to the licensee or permittee; and

`(ii)(I) the programming was recorded or scripted, and the licensee or permittee was not given a reasonable opportunity to review the programming in advance; or

`(II) the programming was live or unscripted, and the licensee or permittee had no reasonable basis to believe the programming would contain obscene, indecent, or profane material.

The Commission shall by rule define the term `network organization' for purposes of this subparagraph.'.

SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

Section 503(b)(5) of the Communications Act of 1934 (47 U.S.C. 503(b)(5) is amended--

(1) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively;

(2) by inserting `(A)' after `(5)';

(3) by redesignating the second sentence as subparagraph (B);

(4) in such subparagraph (B) as redesignated--

(A) by striking `The provisions of this paragraph shall not apply, however,' and inserting `The provisions of subparagraph (A) shall not apply (i)';

(B) by striking `operator, if the person' and inserting `operator, (ii) if the person';

(C) by striking `or in the case of' and inserting `(iii) in the case of'; and

(D) by inserting after `that tower' the following: `, or (iv) in the case of a determination that a person uttered obscene, indecent, or profane material that was broadcast by a broadcast station licensee or permittee, if the person is determined to have willfully or intentionally made the utterance'; and

(5) by redesignating the last sentence as subparagraph (C).

SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

Section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) is amended by adding at the end thereof the following new paragraph:

`(7) In the case of an allegation concerning the utterance of obscene, indecent, or profane material that is broadcast by a station licensee or permittee--

`(A) within 180 days after the date of the receipt of such allegation, the Commission shall--

`(i) issue the required notice under paragraph (3) to such licensee or permittee or the person making such utterance;

`(ii) issue a notice of apparent liability to such licensee or permittee or person in accordance with paragraph (4); or

`(iii) notify such licensee, permittee, or person in writing, and any person submitting such allegation in writing or by general publication, that the Commission has determined not to issue either such notice; and

`(B) if the Commission issues such notice and such licensee, permittee, or person has not paid a penalty or entered into a settlement with the Commission, within 270 days after the date of the receipt of such allegation, the Commission shall--

`(i) issue an order imposing a forfeiture penalty; or

`(ii) notify such licensee, permittee, or person in writing, and any person submitting such allegation in writing or by general publication, that the Commission has determined not to issue either such order.'.

SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.

Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further amended by adding at the end the following new subsection:

`(c) Additional Remedies for Indecent Broadcasting- In any proceeding under this section in which the Commission determines that any broadcast station licensee or permittee has broadcast obscene, indecent, or profane material, the Commission may, in addition to imposing a penalty under this section, require the licensee or permittee to broadcast public service announcements that serve the educational and informational needs of children. Such announcements may be required to reach an audience that is up to 5 times the size of the audience that is estimated to have been reached by the obscene, indecent, or profane material, as determined in accordance with regulations prescribed by the Commission.'.

SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.

Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further amended by adding at the end (after subsection (c) as added by section 6) the following new subsection:

`(d) Consideration of License Disqualification for Violations of Indecency Prohibitions- If the

Commission issues a notice under paragraph (3) or (4) of subsection (b) to a broadcast station licensee or permittee looking toward the imposition of a forfeiture penalty under this Act based on an allegation that the licensee or permittee broadcast obscene, indecent, or profane material, and either--

`(1) such forfeiture penalty has been paid, or

`(2) a forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of subsection (b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,

then, notwithstanding section 504(c), the Commission shall, in any subsequent proceeding under section 308(b) or 310(d), take into consideration whether the broadcast of such material demonstrates a lack of character or other qualifications required to operate a station.'.

SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLATIONS OF INDECENCY PROHIBITIONS.

Section 309(k) of the Communications Act of 1934 (47 U.S.C. 309(k)) is amended by adding at the end the following new paragraph:

`(5) License renewal consideration of violations of indecency prohibitions- If the Commission has issued a notice under paragraph (3) or (4) of section 503(b) to a broadcast station licensee or permittee with respect to a broadcast station looking toward the imposition of a forfeiture penalty under this Act based on an allegation that such broadcast station broadcast obscene, indecent, or profane material, and--

`(A) such forfeiture penalty has been paid, or

`(B) a forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of section 503(b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,

then, notwithstanding section 504(c), such violation shall be treated as a serious violation for purposes of paragraph (1)(B) of this subsection with respect to the renewal of the license or permit for such station.'.

SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.

Section 312 of the Communications Act of 1934 (47 U.S.C. 312) is amended by adding at the end the following new subsection:

`(h) License Revocation for Violations of Indecency Prohibitions-

`(1) Consequences of multiple violations- If, in each of 3 or more proceedings during the term of any broadcast license, the Commission issues a notice under paragraph (3) or (4) of section 503(b) to a broadcast station licensee or permittee with respect to a broadcast station looking toward the imposition of a forfeiture penalty under this Act based on an allegation that such broadcast station broadcast obscene, indecent, or profane material, and in each such proceeding either--

`(A) such forfeiture penalty has been paid, or

`(B) a forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of section 503(b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,

then, notwithstanding section 504(c), the Commission shall commence a proceeding under subsection (a) of this section to consider whether the Commission should revoke the station license or construction permit of that licensee or permittee for such station.

`(2) Preservation of authority- Nothing in this subsection shall be construed to limit the authority of the Commission to commence a proceeding under subsection (a).'.

SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF THE COMMISSION.

Each annual report submitted by the Federal Communications Commission after the date of enactment of this Act shall, in accordance with section 4(k)(2) of the Communications Act of 1934 (47 U.S.C. 154(k)(2)), include the following:

(1) The number of complaints received by the Commission during the year covered by the report alleging that a broadcast contained obscene, indecent, or profane material, and the number of programs to which such complaints relate.

(2) The number of those complaints that have been dismissed or denied by the Commission.

(3) The number of complaints that have remained pending at the end of the year covered by the annual report.

(4) The number of notices issued by the Commission under paragraph (3) or (4) of section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) during the year covered by the report to enforce the statutes, rules, and policies prohibiting the broadcasting of obscene, indecent, or profane material.

(5) For each such notice, a statement of--

(A) the amount of the proposed forfeiture;

(B) the program, station, and corporate parent to which the notice was issued;

(C) the length of time between the date on which the complaint was filed and the date on which the notice was issued; and

(D) the status of the proceeding.

(6) The number of forfeiture orders issued pursuant to section 503(b) of such Act during the year covered by the report to enforce the statutes, rules, and policies prohibiting the broadcasting of obscene, indecent, or profane material.

(7) For each such forfeiture order, a statement of--

(A) the amount assessed by the final forfeiture order;

(B) the program, station, and corporate parent to which it was issued;

(C) whether the licensee has paid the forfeiture order;

(D) the amount paid by the licensee; and

(E) in instances where the licensee refused to pay, whether the Department of Justice brought an action in Federal court to collect the penalty.

SEC. 11. SENSE OF THE CONGRESS.

(a) Reinstatement of Policy- It is the sense of the Congress that the broadcast television station licensees should reinstitute a family viewing policy for broadcasters.

(b) Definition- For purposes of this section, a family viewing policy is a policy similar to the policy that existed in the United States from 1975 to 1983, as part of the National Association of Broadcaster's code of conduct for television, and that included the concept of a family viewing hour.

SEC. 12. IMPLEMENTATION.

(a) Regulations- The Commission shall prescribe regulations to implement the amendments made by this Act within 180 days after the date of enactment of this Act.

(b) Prospective Application- This Act and the amendments made by this Act shall not apply with respect to material broadcast before the date of enactment of this Act.

(c) Separability- Section 708 of the Communications Act of 1934 (47 U.S.C. 608) shall apply to this Act and the amendments made by this Act.

Amend the title so as to read: `A bill to increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane material, and for other purposes.'.

Union Calendar No. 251

To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language.

March 9, 2004

END