Calendar No. 17
109th CONGRESS
1st Session
H. R. 310
IN THE SENATE OF THE UNITED STATES
February 18, 2005
Read the second time and placed on the calendar
AN ACT
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.
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 2005'.
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;
`(II) if the violator is a company, the size of the company and the
size of the market served; and
`(III) if the violator is an individual, the financial impact of a forfeiture
penalty on that individual.
`(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 and intentionally
made the utterance, knowing or having reason to know that the utterance
would be broadcast'; 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 court of competent jurisdiction has ordered payment of such forfeiture
penalty, and such order has become final,
then 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 court of competent jurisdiction has ordered payment of such forfeiture
penalty, and such order has become final,
then 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 court of competent jurisdiction has ordered payment of such forfeiture
penalty, and such order has become final,
then 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.
(a) Required Contents- Each calendar year beginning after the date of enactment
of this Act, the Federal Communications Commission shall submit to the Congress
an annual report that includes the following:
(1) The number of complaints received by the Commission during the years
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 years 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 years 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 years 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; and
(D) the amount paid by the licensee.
(8) In instances where the licensee has refused to pay, whether the Commission
referred such order to the Department of Justice to collect the penalty.
(9) In cases where the Commission referred such order to the Department
of Justice--
(A) the number of days from the date the Commission issued such order
to the date the Commission referred such order to the Department;
(B) whether the Department has commenced an action to collect the penalty,
and if such action was commenced, the number of days from the date the
Commission referred such order to the Department to the date the action
by the Department commenced; and
(C) whether the collection action resulted in a payment, and if such
action resulted in a payment, the amount of such payment.
(b) Years Covered- For purposes of this section, the `years covered' by
the report required under this section shall be the years beginning with
calendar year 2000 through the calendar year preceding the year in which
the report is submitted.
SEC. 11. UPDATING GUIDANCE TO THE BROADCAST INDUSTRY REGARDING INDECENCY.
Within 9 months after the date of enactment of this Act, and at least once
every 3 years thereafter, the Federal Communications Commission shall revise,
on the basis of recent developments in the Commission indecency case law,
the Commission's policy statement to provide industry guidance on the Commission's
interpretation of, and enforcement policies regarding, the laws and regulations
concerning broadcast indecency, as contained in the policy statement adopted
March 14, 2001, and released April 6, 2001 (FCC 01-90).
SEC. 12. GAO STUDY OF INDECENT BROADCASTING COMPLAINTS.
(a) Inquiry and Report Required- The Government Accountability Office shall
conduct a study examining, with respect to calendar year 2000 through the
calendar year preceding the year in which the report is submitted--
(1) the number of complaints concerning the broadcasting of obscene, indecent,
and profane material to the Federal Communications Commission;
(2) the number of such complaints that result in final agency actions
by the Commission;
(3) the length of time taken by the Commission in responding to such complaints;
(4) what mechanisms the Commission has established to receive, investigate,
and respond to such complaints; and
(5) whether complainants to the Commission are adequately informed by
the Commission of the responses to their complaints.
(b) Submission of Report- The Government Accountability Office shall submit
a report on the results of such study within one year after the date of
enactment of this Act to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the House of Representatives.
SEC. 13. 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. 14. 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.
Passed the House of Representatives February 16, 2005.
Attest:
JEFF TRANDAHL,
Clerk.
Calendar No. 17
109th CONGRESS
1st Session
H. R. 310
AN ACT
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.
February 18, 2005
Read the second time and placed on the calendar
END
