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.

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

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

3 Enforcement Act of 2005’’.

4 SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT,

5 AND PROFANE BROADCASTS.

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

7 1934 (47 U.S.C. 503(b)(2)) is amended—

8 (1) by redesignating subparagraphs (C) and

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

10 (2) by inserting after subparagraph (B) the fol11 lowing new subparagraph:

12 ‘‘(C) Notwithstanding subparagraph (A), if the viola13 tor is (i) a broadcast station licensee or permittee, or (ii)

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

15 or other instrument or authorization issued by the Com16 mission, and the violator is determined by the Commission

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

18 or profane material, the amount of any forfeiture penalty

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

20 for each violation.’’; and

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

22 paragraph (1) of this subsection—

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

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

25 and
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1 (B) by adding at the end the following:

2 ‘‘Notwithstanding the preceding sentence, if the

3 violator is determined by the Commission under

4 paragraph (1) to have uttered obscene, inde5 cent, or profane material (and the case is not

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

7 amount of any forfeiture penalty determined

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

9 each violation.’’.

10 SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES;

11 EXCEPTION.

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

13 1934 (47 U.S.C. 503(b)(2)) is further amended by adding

14 at the end (after subparagraph (E) as redesignated by sec15 tion 2(1) of this Act) the following new subparagraphs:

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

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

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

19 Commission shall take into account, in addition to the

20 matters described in subparagraph (E), the following fac21 tors:

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

23 the violator, the following:
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1 ‘‘(I) whether the material uttered by the

2 violator was live or recorded, scripted or

3 unscripted;

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

5 opportunity to review recorded or scripted pro6 gramming or had a reasonable basis to believe

7 live or unscripted programming may contain ob8 scene, indecent, or profane material;

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

10 unscripted programming, whether a time delay

11 blocking mechanism was implemented for the

12 programming;

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

14 audience of the programming; and

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

16 a children’s television program as described in

17 the Commission’s children’s television program18 ming policy (47 CFR 73.4050(c)).

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

20 pay, the following:

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

22 individual;

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

24 of the company and the size of the market

25 served; and
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1 ‘‘(III) if the violator is an indi2 vidual, the financial impact of a for3 feiture penalty on that individual.

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

5 receives programming from a network organization, but

6 that is not owned or controlled, or under common owner7 ship or control with, such network organization, shall not

8 be subject to a forfeiture penalty under this subsection for

9 broadcasting obscene, indecent, or profane material, if—

10 ‘‘(i) such material was within live or recorded

11 programming provided by the network organization

12 to the licensee or permittee; and

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

14 scripted, and the licensee or permittee was not given

15 a reasonable opportunity to review the programming

16 in advance; or

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

18 and the licensee or permittee had no reasonable

19 basis to believe the programming would contain ob20 scene, indecent, or profane material.

21 The Commission shall by rule define the term ‘network

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

23 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

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

25 1934 (47 U.S.C. 503(b)(5)) is amended—
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1 (1) by redesignating subparagraphs (A), (B),

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

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

4 (3) by redesignating the second sentence as

5 subparagraph (B);

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

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

8 paragraph shall not apply, however,’’ and in9 serting ‘‘The provisions of subparagraph (A)

10 shall not apply (i)’’;

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

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

13 (C) by striking ‘‘or in the case of’’ and in14 serting ‘‘(iii) in the case of’’; and

15 (D) by inserting after ‘‘that tower’’ the fol16 lowing: ‘‘, or (iv) in the case of a determination

17 that a person uttered obscene, indecent, or pro18 fane material that was broadcast by a broadcast

19 station licensee or permittee, if the person is

20 determined to have willfully and intentionally

21 made the utterance, knowing or having reason

22 to know that the utterance would be broad23 cast’’; and

24 (5) by redesignating the last sentence as sub25 paragraph (C).
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1 SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

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

3 (47 U.S.C. 503(b)) is amended by adding at the end there4 of the following new paragraph:

5 ‘‘(7) In the case of an allegation concerning the utter6 ance of obscene, indecent, or profane material that is

7 broadcast by a station licensee or permittee—

8 ‘‘(A) within 180 days after the date of the re9 ceipt of such allegation, the Commission shall—

10 ‘‘(i) issue the required notice under para11 graph (3) to such licensee or permittee or the

12 person making such utterance;

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

14 such licensee or permittee or person in accord15 ance with paragraph (4); or

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

17 person in writing, and any person submitting

18 such allegation in writing or by general publica19 tion, that the Commission has determined not

20 to issue either such notice; and

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

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

23 penalty or entered into a settlement with the Com24 mission, within 270 days after the date of the re25 ceipt of such allegation, the Commission shall—
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1 ‘‘(i) issue an order imposing a forfeiture

2 penalty; or

3 ‘‘(ii) notify such licensee, permittee, or per4 son in writing, and any person submitting such

5 allegation in writing or by general publication,

6 that the Commission has determined not to

7 issue either such order.’’.

8 SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROAD9 CAST.

10 Section 503 of the Communications Act of 1934 (47

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

12 following new subsection:

13 ‘‘(c) ADDITIONAL REMEDIES FOR INDECENT BROAD14 CASTING.—In any proceeding under this section in which

15 the Commission determines that any broadcast station li16 censee or permittee has broadcast obscene, indecent, or

17 profane material, the Commission may, in addition to im18 posing a penalty under this section, require the licensee

19 or permittee to broadcast public service announcements

20 that serve the educational and informational needs of chil21 dren. Such announcements may be required to reach an

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

23 that is estimated to have been reached by the obscene, in24 decent, or profane material, as determined in accordance

25 with regulations prescribed by the Commission.’’.
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1 SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF

2 INDECENCY PROHIBITIONS.

3 Section 503 of the Communications Act of 1934 (47

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

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

6 new subsection:

7 ‘‘(d) CONSIDERATION OF LICENSE DISQUALIFICA8 TION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.—

9 If the Commission issues a notice under paragraph (3)

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

11 permittee looking toward the imposition of a forfeiture

12 penalty under this Act based on an allegation that the li13 censee or permittee broadcast obscene, indecent, or pro14 fane material, and either—

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

16 ‘‘(2) a court of competent jurisdiction has or17 dered payment of such forfeiture penalty, and such

18 order has become final,

19 then the Commission shall, in any subsequent proceeding

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

21 whether the broadcast of such material demonstrates a

22 lack of character or other qualifications required to oper23 ate a station.’’.
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1 SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLA2 TIONS OF INDECENCY PROHIBITIONS.

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

4 (47 U.S.C. 309(k)) is amended by adding at the end the

5 following new paragraph:

6 ‘‘(5) LICENSE RENEWAL CONSIDERATION OF

7 VIOLATIONS OF INDECENCY PROHIBITIONS.—If the

8 Commission has issued a notice under paragraph (3)

9 or (4) of section 503(b) to a broadcast station li10 censee or permittee with respect to a broadcast sta11 tion looking toward the imposition of a forfeiture

12 penalty under this Act based on an allegation that

13 such broadcast station broadcast obscene, indecent,

14 or profane material, and—

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

16 or

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

18 ordered payment of such forfeiture penalty, and

19 such order has become final,

20 then such violation shall be treated as a serious vio21 lation for purposes of paragraph (1)(B) of this sub22 section with respect to the renewal of the license or

23 permit for such station.’’.
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1 SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDE2 CENCY PROHIBITIONS.

3 Section 312 of the Communications Act of 1934 (47

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

5 new subsection:

6 ‘‘(h) LICENSE REVOCATION FOR VIOLATIONS OF IN7 DECENCY PROHIBITIONS.—

8 ‘‘(1) CONSEQUENCES OF MULTIPLE VIOLA9 TIONS.—If, in each of 3 or more proceedings during

10 the term of any broadcast license, the Commission

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

12 503(b) to a broadcast station licensee or permittee

13 with respect to a broadcast station looking toward

14 the imposition of a forfeiture penalty under this Act

15 based on an allegation that such broadcast station

16 broadcast obscene, indecent, or profane material,

17 and in each such proceeding either—

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

19 or

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

21 ordered payment of such forfeiture penalty, and

22 such order has become final,

23 then the Commission shall commence a proceeding

24 under subsection (a) of this section to consider

25 whether the Commission should revoke the station li-
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1 cense or construction permit of that licensee or per2 mittee for such station.

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

4 in this subsection shall be construed to limit the au5 thority of the Commission to commence a proceeding

6 under subsection (a).’’.

7 SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF

8 THE COMMISSION.

9 (a) REQUIRED CONTENTS.—Each calendar year be10 ginning after the date of enactment of this Act, the Fed11 eral Communications Commission shall submit to the Con12 gress an annual report that includes the following:

13 (1) The number of complaints received by the

14 Commission during the years covered by the report

15 alleging that a broadcast contained obscene, inde16 cent, or profane material, and the number of pro17 grams to which such complaints relate.

18 (2) The number of those complaints that have

19 been dismissed or denied by the Commission.

20 (3) The number of complaints that have re21 mained pending at the end of the years covered by

22 the annual report.

23 (4) The number of notices issued by the Com24 mission under paragraph (3) or (4) of section 503(b)

25 of the Communications Act of 1934 (47 U.S.C.
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1 503(b)) during the years covered by the report to

2 enforce the statutes, rules, and policies prohibiting

3 the broadcasting of obscene, indecent, or profane

4 material.

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

6 (A) the amount of the proposed forfeiture;

7 (B) the program, station, and corporate

8 parent to which the notice was issued;

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

10 which the complaint was filed and the date on

11 which the notice was issued; and

12 (D) the status of the proceeding.

13 (6) The number of forfeiture orders issued pur14 suant to section 503(b) of such Act during the years

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

16 and policies prohibiting the broadcasting of obscene,

17 indecent, or profane material.

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

19 of—

20 (A) the amount assessed by the final for21 feiture order;

22 (B) the program, station, and corporate

23 parent to which it was issued;

24 (C) whether the licensee has paid the for25 feiture order; and
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1 (D) the amount paid by the licensee.

2 (8) In instances where the licensee has refused

3 to pay, whether the Commission referred such order

4 to the Department of Justice to collect the penalty.

5 (9) In cases where the Commission referred

6 such order to the Department of Justice—

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

8 Commission issued such order to the date the

9 Commission referred such order to the Depart10 ment;

11 (B) whether the Department has com12 menced an action to collect the penalty, and if

13 such action was commenced, the number of

14 days from the date the Commission referred

15 such order to the Department to the date the

16 action by the Department commenced; and

17 (C) whether the collection action resulted

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

19 payment, the amount of such payment.

20 (b) YEARS COVERED.—For purposes of this section,

21 the ‘‘years covered’’ by the report required under this sec22 tion shall be the years beginning with calendar year 2000

23 through the calendar year preceding the year in which the

24 report is submitted.
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1 SEC. 11. UPDATING GUIDANCE TO THE BROADCAST INDUS2 TRY REGARDING INDECENCY.

3 Within 9 months after the date of enactment of this

4 Act, and at least once every 3 years thereafter, the Federal

5 Communications Commission shall revise, on the basis of

6 recent developments in the Commission indecency case

7 law, the Commission’s policy statement to provide indus8 try guidance on the Commission’s interpretation of, and

9 enforcement policies regarding, the laws and regulations

10 concerning broadcast indecency, as contained in the policy

11 statement adopted March 14, 2001, and released April 6,

12 2001 (FCC 01–90).

13 SEC. 12. GAO STUDY OF INDECENT BROADCASTING COM14 PLAINTS.

15 (a) INQUIRY AND REPORT REQUIRED.—The Govern16 ment Accountability Office shall conduct a study exam17 ining, with respect to calendar year 2000 through the cal18 endar year preceding the year in which the report is

19 submitted—

20 (1) the number of complaints concerning the

21 broadcasting of obscene, indecent, and profane mate22 rial to the Federal Communications Commission;

23 (2) the number of such complaints that result

24 in final agency actions by the Commission;

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

26 in responding to such complaints;
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1 (4) what mechanisms the Commission has es2 tablished to receive, investigate, and respond to such

3 complaints; and

4 (5) whether complainants to the Commission

5 are adequately informed by the Commission of the

6 responses to their complaints.

7 (b) SUBMISSION OF REPORT.—The Government Ac8 countability Office shall submit a report on the results of

9 such study within one year after the date of enactment

10 of this Act to the Committee on Commerce, Science, and

11 Transportation of the Senate and the Committee on En12 ergy and Commerce of the House of Representatives.

13 SEC. 13. SENSE OF THE CONGRESS.

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

15 the Congress that the broadcast television station licensees

16 should reinstitute a family viewing policy for broadcasters.

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

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

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

20 of the National Association of Broadcaster’s code of con21 duct for television, and that included the concept of a fam22 ily viewing hour.

23 SEC. 14. IMPLEMENTATION.

24 (a) REGULATIONS.—The Commission shall prescribe

25 regulations to implement the amendments made by this
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1 Act within 180 days after the date of enactment of this

2 Act.

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

4 amendments made by this Act shall not apply with respect

5 to material broadcast before the date of enactment of this

6 Act.

7 (c) SEPARABILITY.—Section 708 of the Communica8 tions Act of 1934 (47 U.S.C. 608) shall apply to this Act

9 and the amendments made by this Act.

Passed the House of Representatives February 16,

2005.

Attest:

Clerk.

109TH CONGRESS

1ST SESSION H. R. 310

AN ACT

To increase the penalties for violations by television

profane material, and for other purposes.against transmission of obscene, indecent, andand radio broadcasters of the prohibitions