I 

109TH CONGRESS 

1ST SESSION H. R. 310 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 25, 2005 

Mr. UPTON (for himself, Mr. MARKEY, Mr. BARTON of Texas, and Mr. DINGELL) introduced the following bill; which was referred to the Committee 

on Energy and Commerce 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Broadcast Decency 

5 Enforcement Act of 2005’’. 
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1 SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, 

2 AND PROFANE BROADCASTS. 

3 Section 503(b)(2) of the Communications Act of 

4 1934 (47 U.S.C. 503(b)(2)) is amended— 

5 (1) by redesignating subparagraphs (C) and 

6 (D) as subparagraphs (D) and (E), respectively; 

7 (2) by inserting after subparagraph (B) the fol8 lowing new subparagraph: 

9 ‘‘(C) Notwithstanding subparagraph (A), if the viola10 tor is (i) a broadcast station licensee or permittee, or (ii) 

11 an applicant for any broadcast license, permit, certificate, 

12 or other instrument or authorization issued by the Com13 mission, and the violator is determined by the Commission 

14 under paragraph (1) to have broadcast obscene, indecent, 

15 or profane material, the amount of any forfeiture penalty 

16 determined under this section shall not exceed $500,000 

17 for each violation.’’; and 

18 (3) in subparagraph (D), as redesignated by 

19 paragraph (1) of this subsection— 

20 (A) by striking ‘‘subparagraph (A) or (B)’’ 

21 and inserting ‘‘subparagraph (A), (B), or (C)’’; 

22 and 

23 (B) by adding at the end the following: 

24 ‘‘Notwithstanding the preceding sentence, if the 

25 violator is determined by the Commission under 

26 paragraph (1) to have uttered obscene, inde-
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1 cent, or profane material (and the case is not 

2 covered by subparagraph (A), (B), or (C)), the 

3 amount of any forfeiture penalty determined 

4 under this section shall not exceed $500,000 for 

5 each violation.’’. 

6 SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; 

7 EXCEPTION. 

8 Section 503(b)(2) of the Communications Act of 

9 1934 (47 U.S.C. 503(b)(2)) is further amended by adding 

10 at the end (after subparagraph (E) as redesignated by sec11 tion 2(1) of this Act) the following new subparagraphs: 

12 ‘‘(F) In the case of a violation in which the violator 

13 is determined by the Commission under paragraph (1) to 

14 have uttered obscene, indecent, or profane material, the 

15 Commission shall take into account, in addition to the 

16 matters described in subparagraph (E), the following fac17 tors: 

18 ‘‘(i) With respect to the degree of culpability of 

19 the violator, the following: 

20 ‘‘(I) whether the material uttered by the 

21 violator was live or recorded, scripted or 

22 unscripted; 

23 ‘‘(II) whether the violator had a reasonable 

24 opportunity to review recorded or scripted pro25 gramming or had a reasonable basis to believe 
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1 live or unscripted programming may contain ob2 scene, indecent, or profane material; 

3 ‘‘(III) if the violator originated live or 

4 unscripted programming, whether a time delay 

5 blocking mechanism was implemented for the 

6 programming; 

7 ‘‘(IV) the size of the viewing or listening 

8 audience of the programming; and 

9 ‘‘(V) whether the programming was part of 

10 a children’s television program as described in 

11 the Commission’s children’s television program12 ming policy (47 CFR 73.4050(c)). 

13 ‘‘(ii) With respect to the violator’s ability to 

14 pay, the following: 

15 ‘‘(I) whether the violator is a company or 

16 individual; and 

17 ‘‘(II) if the violator is a company, the size 

18 of the company and the size of the market 

19 served. 

20 ‘‘(G) A broadcast station licensee or permittee that 

21 receives programming from a network organization, but 

22 that is not owned or controlled, or under common owner23 ship or control with, such network organization, shall not 

24 be subject to a forfeiture penalty under this subsection for 

25 broadcasting obscene, indecent, or profane material, if— 
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1 ‘‘(i) such material was within live or recorded 

2 programming provided by the network organization 

3 to the licensee or permittee; and 

4 ‘‘(ii)(I) the programming was recorded or 

5 scripted, and the licensee or permittee was not given 

6 a reasonable opportunity to review the programming 

7 in advance; or— 

8 ‘‘(II) the programming was live or unscripted, 

9 and the licensee or permittee had no reasonable 

10 basis to believe the programming would contain ob11 scene, indecent, or profane material. 

12 The Commission shall by rule define the term ‘network 

13 organization’ for purposes of this subparagraph.’’. 

14 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES. 

15 Section 503(b)(5) of the Communications Act of 

16 1934 (47 U.S.C. 503(b)(5)) is amended— 

17 (1) by redesignating subparagraphs (A), (B), 

18 and (C) as clauses (i), (ii), and (iii), respectively; 

19 (2) by inserting ‘‘(A)’’ after ‘‘(5)’’; 

20 (3) by redesignating the second sentence as 

21 subparagraph (B); 

22 (4) in such subparagraph (B) as redesignated— 

23 (A) by striking ‘‘The provisions of this 

24 paragraph shall not apply, however,’’ and in-
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1 serting ‘‘The provisions of subparagraph (A) 

2 shall not apply (i)’’; 

3 (B) by striking ‘‘operator, if the person’’ 

4 and inserting ‘‘operator, (ii) if the person’’; 

5 (C) by striking ‘‘or in the case of’’ and in6 serting ‘‘(iii) in the case of’’; and 

7 (D) by inserting after ‘‘that tower’’ the fol8 lowing: ‘‘, or (iv) in the case of a determination 

9 that a person uttered obscene, indecent, or pro10 fane material that was broadcast by a broadcast 

11 station licensee or permittee, if the person is 

12 determined to have willfully or intentionally 

13 made the utterance’’; and 

14 (5) by redesignating the last sentence as sub15 paragraph (C). 

16 SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS. 

17 Section 503(b) of the Communications Act of 1934 

18 (47 U.S.C. 503(b)) is amended by adding at the end there19 of the following new paragraph: 

20 ‘‘(7) In the case of an allegation concerning the utter21 ance of obscene, indecent, or profane material that is 

22 broadcast by a station licensee or permittee— 

23 ‘‘(A) within 180 days after the date of the re24 ceipt of such allegation, the Commission shall— 
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1 ‘‘(i) issue the required notice under para2 graph (3) to such licensee or permittee or the 

3 person making such utterance; 

4 ‘‘(ii) issue a notice of apparent liability to 

5 such licensee or permittee or person in accord6 ance with paragraph (4); or 

7 ‘‘(iii) notify such licensee, permittee, or 

8 person in writing, and any person submitting 

9 such allegation in writing or by general publica10 tion, that the Commission has determined not 

11 to issue either such notice; and 

12 ‘‘(B) if the Commission issues such notice and 

13 such licensee, permittee, or person has not paid a 

14 penalty or entered into a settlement with the Com15 mission, within 270 days after the date of the re16 ceipt of such allegation, the Commission shall— 

17 ‘‘(i) issue an order imposing a forfeiture 

18 penalty; or 

19 ‘‘(ii) notify such licensee, permittee, or per20 son in writing, and any person submitting such 

21 allegation in writing or by general publication, 

22 that the Commission has determined not to 

23 issue either such order.’’. 
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1 SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROAD2 CAST. 

3 Section 503 of the Communications Act of 1934 (47 

4 U.S.C. 503) is further amended by adding at the end the 

5 following new subsection: 

6 ‘‘(c) ADDITIONAL REMEDIES FOR INDECENT BROAD7 CASTING.—In any proceeding under this section in which 

8 the Commission determines that any broadcast station li9 censee or permittee has broadcast obscene, indecent, or 

10 profane material, the Commission may, in addition to im11 posing a penalty under this section, require the licensee 

12 or permittee to broadcast public service announcements 

13 that serve the educational and informational needs of chil14 dren. Such announcements may be required to reach an 

15 audience that is up to 5 times the size of the audience 

16 that is estimated to have been reached by the obscene, in17 decent, or profane material, as determined in accordance 

18 with regulations prescribed by the Commission.’’. 

19 SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF 

20 INDECENCY PROHIBITIONS. 

21 Section 503 of the Communications Act of 1934 (47 

22 U.S.C. 503) is further amended by adding at the end 

23 (after subsection (c) as added by section 6) the following 

24 new subsection: 

25 ‘‘(d) CONSIDERATION OF LICENSE DISQUALIFICA26 TION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.— 
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1 If the Commission issues a notice under paragraph (3) 

2 or (4) of subsection (b) to a broadcast station licensee or 

3 permittee looking toward the imposition of a forfeiture 

4 penalty under this Act based on an allegation that the li5 censee or permittee broadcast obscene, indecent, or pro6 fane material, and either— 

7 ‘‘(1) such forfeiture penalty has been paid, or 

8 ‘‘(2) a court of competent jurisdiction has or9 dered payment of such forfeiture penalty, and such 

10 order has become final, 

11 then the Commission shall, in any subsequent proceeding 

12 under section 308(b) or 310(d), take into consideration 

13 whether the broadcast of such material demonstrates a 

14 lack of character or other qualifications required to oper15 ate a station.’’. 

16 SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLA17 TIONS OF INDECENCY PROHIBITIONS. 

18 Section 309(k) of the Communications Act of 1934 

19 (47 U.S.C. 309(k)) is amended by adding at the end the 

20 following new paragraph: 

21 ‘‘(5) LICENSE RENEWAL CONSIDERATION OF

22 VIOLATIONS OF INDECENCY PROHIBITIONS.—If the 

23 Commission has issued a notice under paragraph (3) 

24 or (4) of section 503(b) to a broadcast station li25 censee or permittee with respect to a broadcast sta-
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1 tion looking toward the imposition of a forfeiture 

2 penalty under this Act based on an allegation that 

3 such broadcast station broadcast obscene, indecent, 

4 or profane material, and— 

5 ‘‘(A) such forfeiture penalty has been paid, 

6 or 

7 ‘‘(B) a court of competent jurisdiction has 

8 ordered payment of such forfeiture penalty, and 

9 such order has become final, 

10 then such violation shall be treated as a serious vio11 lation for purposes of paragraph (1)(B) of this sub12 section with respect to the renewal of the license or 

13 permit for such station.’’. 

14 SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDE15 CENCY PROHIBITIONS. 

16 Section 312 of the Communications Act of 1934 (47 

17 U.S.C. 312) is amended by adding at the end the following 

18 new subsection: 

19 ‘‘(h) LICENSE REVOCATION FOR VIOLATIONS OF IN20 DECENCY PROHIBITIONS.— 

21 ‘‘(1) CONSEQUENCES OF MULTIPLE VIOLA22 TIONS.—If, in each of 3 or more proceedings during 

23 the term of any broadcast license, the Commission 

24 issues a notice under paragraph (3) or (4) of section 

25 503(b) to a broadcast station licensee or permittee 
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1 with respect to a broadcast station looking toward 

2 the imposition of a forfeiture penalty under this Act 

3 based on an allegation that such broadcast station 

4 broadcast obscene, indecent, or profane material, 

5 and in each such proceeding either— 

6 ‘‘(A) such forfeiture penalty has been paid, 

7 or 

8 ‘‘(B) a court of competent jurisdiction has 

9 ordered payment of such forfeiture penalty, and 

10 such order has become final, 

11 then the Commission shall commence a proceeding 

12 under subsection (a) of this section to consider 

13 whether the Commission should revoke the station li14 cense or construction permit of that licensee or per15 mittee for such station. 

16 ‘‘(2) PRESERVATION OF AUTHORITY.—Nothing 

17 in this subsection shall be construed to limit the au18 thority of the Commission to commence a proceeding 

19 under subsection (a).’’. 

20 SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF 

21 THE COMMISSION. 

22 Each calendar year beginning after the date of enact23 ment of this Act, the Federal Communications Commis24 sion shall submit to the Congress an annual report that 

25 includes the following: 
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1 (1) The number of complaints received by the 

2 Commission during the year covered by the report 

3 alleging that a broadcast contained obscene, inde4 cent, or profane material, and the number of pro5 grams to which such complaints relate. 

6 (2) The number of those complaints that have 

7 been dismissed or denied by the Commission. 

8 (3) The number of complaints that have re9 mained pending at the end of the year covered by 

10 the annual report. 

11 (4) The number of notices issued by the Com12 mission under paragraph (3) or (4) of section 503(b) 

13 of the Communications Act of 1934 (47 U.S.C. 

14 503(b)) during the year covered by the report to en15 force the statutes, rules, and policies prohibiting the 

16 broadcasting of obscene, indecent, or profane mate17 rial. 

18 (5) For each such notice, a statement of— 

19 (A) the amount of the proposed forfeiture; 

20 (B) the program, station, and corporate 

21 parent to which the notice was issued; 

22 (C) the length of time between the date on 

23 which the complaint was filed and the date on 

24 which the notice was issued; and 

25 (D) the status of the proceeding. 
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1 (6) The number of forfeiture orders issued pur2 suant to section 503(b) of such Act during the year 

3 covered by the report to enforce the statutes, rules, 

4 and policies prohibiting the broadcasting of obscene, 

5 indecent, or profane material. 

6 (7) For each such forfeiture order, a statement 

7 of— 

8 (A) the amount assessed by the final for9 feiture order; 

10 (B) the program, station, and corporate 

11 parent to which it was issued; 

12 (C) whether the licensee has paid the for13 feiture order; and 

14 (D) the amount paid by the licensee. 

15 (8) In instances where the licensee has refused 

16 to pay, whether the Commission referred such order 

17 to the Department of Justice to collect the penalty. 

18 (9) In cases where the Commission referred 

19 such order to the Department of Justice— 

20 (A) the number of days from the date the 

21 Commission issued such order to the date the 

22 Commission referred such order to the Depart23 ment; 

24 (B) whether the Department has com25 menced an action to collect the penalty, and if 
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1 such action was commenced, the number of 

2 days from the date the Commission referred 

3 such order to the Department to the date the 

4 action by the Department commenced; and 

5 (C) whether the collection action resulted 

6 in a payment, and if such action resulted in a 

7 payment, the amount of such payment. 

8 SEC. 11. GAO STUDY OF INDECENT BROADCASTING COM9 PLAINTS. 

10 (a) INQUIRY AND REPORT REQUIRED.—The General 

11 Accounting Office shall conduct a study examining— 

12 (1) the number of complaints concerning the 

13 broadcasting of obscene, indecent, and profane mate14 rial to the Federal Communications Commission; 

15 (2) the number of such complaints that result 

16 in final agency actions by the Commission; 

17 (3) the length of time taken by the Commission 

18 in responding to such complaints; 

19 (4) what mechanisms the Commission has es20 tablished to receive, investigate, and respond to such 

21 complaints; and 

22 (5) whether complainants to the Commission 

23 are adequately informed by the Commission of the 

24 responses to their complaints. 
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1 (b) SUBMISSION OF REPORT.—The General Account2 ing Office shall submit a report on the results of such 

3 study within one year after the date of enactment of this 

4 Act to the Committee on Commerce, Science, and Trans5 portation of the Senate and the Committee on Energy and 

6 Commerce of the House of Representatives. 

7 SEC. 12. SENSE OF THE CONGRESS. 

8 (a) REINSTATEMENT OF POLICY.—It is the sense of 

9 the Congress that the broadcast television station licensees 

10 should reinstitute a family viewing policy for broadcasters. 

11 (b) DEFINITION.—For purposes of this section, a 

12 family viewing policy is a policy similar to the policy that 

13 existed in the United States from 1975 to 1983, as part 

14 of the National Association of Broadcaster’s code of con15 duct for television, and that included the concept of a fam16 ily viewing hour. 

17 SEC. 13. IMPLEMENTATION. 

18 (a) REGULATIONS.—The Commission shall prescribe 

19 regulations to implement the amendments made by this 

20 Act within 180 days after the date of enactment of this 

21 Act. 

22 (b) PROSPECTIVE APPLICATION.—This Act and the 

23 amendments made by this Act shall not apply with respect 

24 to material broadcast before the date of enactment of this 

25 Act. 
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1 (c) SEPARABILITY.—Section 708 of the Communica2 tions Act of 1934 (47 U.S.C. 608) shall apply to this Act 

3 and the amendments made by this Act. 

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