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Union Calendar No. 2 

109TH CONGRESS 

1ST SESSION H. R. 310 

[Report No. 109–5] 

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 

FEBRUARY 14, 2005 

Additional sponsors: Mr. BLUNT, Mr. GILLMOR, Mr. SHIMKUS, Mr. 

WHITFIELD, Mr. FERGUSON, Mrs. WILSON of New Mexico, Mr. EHLERS, 

Mrs. JO ANN DAVIS of Virginia, Mr. SMITH of Texas, Mr. KNOLLENBERG, Mr. CAMP, Mr. HOEKSTRA, Mr. ROGERS of Michigan, Mr. GARY

G. MILLER of California, Mr. NEUGEBAUER, Mr. BONNER, Mr. AKIN, 

Mr. FORBES, Mr. PICKERING, Mr. STEARNS, Mr. BUYER, Ms. GINNY

BROWN-WAITE of Florida, Mr. WALSH, Mr. HOLDEN, Mr. WICKER, Mr. 

MILLER of Florida, Mr. BACHUS, Mr. COSTELLO, Mr. CHANDLER, Mr. 

HAYES, Mr. DEAL of Georgia, Mr. OSBORNE, Mr. GORDON, Mr. 

ETHERIDGE, Mr. DAVIS of Florida, Mr. MATHESON, Mr. BOOZMAN, Ms. 

ESHOO, Mr. SOUDER, Mr. BARRETT of South Carolina, Mr. BILIRAKIS, 

Mr. HAYWORTH, Mr. WILSON of South Carolina, Mr. NORWOOD, Mrs. 

CUBIN, Mr. GREEN of Wisconsin, Mr. KENNEDY of Minnesota, Mr. 

DENT, Mr. GENE GREEN of Texas, Mr. SCHWARZ of Michigan, Mr. 

MCINTYRE, Mr. CULBERSON, Mr. JOHNSON of Illinois, Mrs. JOHNSON of 

Connecticut, Mr. EVERETT, Mr. DAVIS of Tennessee, Mr. TURNER, Mr. 

RYUN of Kansas, Mr. PENCE, Mr. KLINE, Mr. BACA, Mr. MCCAUL of 

Texas, Mr. GOODLATTE, and Mr. WELDON of Florida 

FEBRUARY 14, 2005 

Committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 
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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’’. 

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

7 AND PROFANE BROADCASTS. 

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

9 1934 (47 U.S.C. 503(b)(2)) is amended— 

10 (1) by redesignating subparagraphs (C) and 

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

12 (2) by inserting after subparagraph (B) the fol13 lowing new subparagraph: 

14 ‘‘(C) Notwithstanding subparagraph (A), if the viola15 tor is (i) a broadcast station licensee or permittee, or (ii) 

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

17 or other instrument or authorization issued by the Com18 mission, and the violator is determined by the Commission 

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

20 or profane material, the amount of any forfeiture penalty 
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1 determined under this section shall not exceed $500,000 

2 for each violation.’’; and 

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

4 paragraph (1) of this subsection— 

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

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

7 and 

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

9 ‘‘Notwithstanding the preceding sentence, if the 

10 violator is determined by the Commission under 

11 paragraph (1) to have uttered obscene, inde12 cent, or profane material (and the case is not 

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

14 amount of any forfeiture penalty determined 

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

16 each violation.’’. 

17 SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; 

18 EXCEPTION. 

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

20 1934 (47 U.S.C. 503(b)(2)) is further amended by adding 

21 at the end (after subparagraph (E) as redesignated by sec22 tion 2(1) of this Act) the following new subparagraphs: 

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

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

25 have uttered obscene, indecent, or profane material, the 
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1 Commission shall take into account, in addition to the 

2 matters described in subparagraph (E), the following fac3 tors: 

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

5 the violator, the following: 

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

7 violator was live or recorded, scripted or 

8 unscripted; 

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

10 opportunity to review recorded or scripted pro11 gramming or had a reasonable basis to believe 

12 live or unscripted programming may contain ob13 scene, indecent, or profane material; 

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

15 unscripted programming, whether a time delay 

16 blocking mechanism was implemented for the 

17 programming; 

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

19 audience of the programming; and 

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

21 a children’s television program as described in 

22 the Commission’s children’s television program23 ming policy (47 CFR 73.4050(c)). 

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

25 pay, the following: 
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1 ‘‘(I) whether the violator is a company or 

2 individual; and 

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

4 of the company and the size of the market 

5 served. 

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

7 receives programming from a network organization, but 

8 that is not owned or controlled, or under common owner9 ship or control with, such network organization, shall not 

10 be subject to a forfeiture penalty under this subsection for 

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

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

13 programming provided by the network organization 

14 to the licensee or permittee; and 

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

16 scripted, and the licensee or permittee was not given 

17 a reasonable opportunity to review the programming 

18 in advance; or— 

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

20 and the licensee or permittee had no reasonable 

21 basis to believe the programming would contain ob22 scene, indecent, or profane material. 

23 The Commission shall by rule define the term ‘network 

24 organization’ for purposes of this subparagraph.’’. 
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1 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES. 

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

3 1934 (47 U.S.C. 503(b)(5)) is amended— 

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

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

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

7 (3) by redesignating the second sentence as 

8 subparagraph (B); 

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

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

11 paragraph shall not apply, however,’’ and in12 serting ‘‘The provisions of subparagraph (A) 

13 shall not apply (i)’’; 

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

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

16 (C) by striking ‘‘or in the case of’’ and in17 serting ‘‘(iii) in the case of’’; and 

18 (D) by inserting after ‘‘that tower’’ the fol19 lowing: ‘‘, or (iv) in the case of a determination 

20 that a person uttered obscene, indecent, or pro21 fane material that was broadcast by a broadcast 

22 station licensee or permittee, if the person is 

23 determined to have willfully or intentionally 

24 made the utterance’’; and 

25 (5) by redesignating the last sentence as sub26 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 Each calendar year beginning after the date of enact10 ment of this Act, the Federal Communications Commis11 sion shall submit to the Congress an annual report that 

12 includes the following: 

13 (1) The number of complaints received by the 

14 Commission during the year 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 year 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 year covered by the report to en2 force the statutes, rules, and policies prohibiting the 

3 broadcasting of obscene, indecent, or profane mate4 rial. 

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 year 

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 SEC. 11. GAO STUDY OF INDECENT BROADCASTING COM21 PLAINTS. 

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

23 Accounting Office shall conduct a study examining— 
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1 (1) the number of complaints concerning the 

2 broadcasting of obscene, indecent, and profane mate3 rial to the Federal Communications Commission; 

4 (2) the number of such complaints that result 

5 in final agency actions by the Commission; 

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

7 in responding to such complaints; 

8 (4) what mechanisms the Commission has es9 tablished to receive, investigate, and respond to such 

10 complaints; and 

11 (5) whether complainants to the Commission 

12 are adequately informed by the Commission of the 

13 responses to their complaints. 

14 (b) SUBMISSION OF REPORT.—The General Account15 ing Office shall submit a report on the results of such 

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

17 Act to the Committee on Commerce, Science, and Trans18 portation of the Senate and the Committee on Energy and 

19 Commerce of the House of Representatives. 

20 SEC. 12. SENSE OF THE CONGRESS. 

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

22 the Congress that the broadcast television station licensees 

23 should reinstitute a family viewing policy for broadcasters. 

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

25 family viewing policy is a policy similar to the policy that 
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1 existed in the United States from 1975 to 1983, as part 

2 of the National Association of Broadcaster’s code of con3 duct for television, and that included the concept of a fam4 ily viewing hour. 

5 SEC. 13. IMPLEMENTATION. 

6 (a) REGULATIONS.—The Commission shall prescribe 

7 regulations to implement the amendments made by this 

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

9 Act. 

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

11 amendments made by this Act shall not apply with respect 

12 to material broadcast before the date of enactment of this 

13 Act. 

14 (c) SEPARABILITY.—Section 708 of the Communica15 tions Act of 1934 (47 U.S.C. 608) shall apply to this Act 

16 and the amendments made by this Act. 

Union Calendar No. 2 

109TH CONGRESS 

1ST SESSION H. R. 310 

[Report No. 109–5] 

A BILL 

To increase the penalties for violations by television 

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

FEBRUARY 14, 2005 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed