II 

Calendar No. 17

109TH CONGRESS 

1ST SESSION H. R. 310

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 16, 2005

Received 

FEBRUARY 17, 2005

Read the first time 

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.

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; 

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

18 of the company and the size of the market 

19 served; and 

20 ‘‘(III) if the violator is an individual, the 

21 financial impact of a forfeiture penalty on that 

22 individual.

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

24 receives programming from a network organization, but 

25 that is not owned or controlled, or under common owner-
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1 ship or control with, such network organization, shall not 

2 be subject to a forfeiture penalty under this subsection for 

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

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

5 programming provided by the network organization 

6 to the licensee or permittee; and 

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

8 scripted, and the licensee or permittee was not given 

9 a reasonable opportunity to review the programming 

10 in advance; or 

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

12 and the licensee or permittee had no reasonable 

13 basis to believe the programming would contain ob14 scene, indecent, or profane material. 

15 The Commission shall by rule define the term ‘network 

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

17 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES. 

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

19 1934 (47 U.S.C. 503(b)(5)) is amended—

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

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

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

23 (3) by redesignating the second sentence as 

24 subparagraph (B); 

25 (4) in such subparagraph (B) as redesignated—
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1 (A) by striking ‘‘The provisions of this 

2 paragraph shall not apply, however,’’ and in3 serting ‘‘The provisions of subparagraph (A) 

4 shall not apply (i)’’; 

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

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

7 (C) by striking ‘‘or in the case of’’ and in8 serting ‘‘(iii) in the case of’’; and 

9 (D) by inserting after ‘‘that tower’’ the fol10 lowing: ‘‘, or (iv) in the case of a determination 

11 that a person uttered obscene, indecent, or pro12 fane material that was broadcast by a broadcast 

13 station licensee or permittee, if the person is 

14 determined to have willfully and intentionally 

15 made the utterance, knowing or having reason 

16 to know that the utterance would be broad17 cast’’; and 

18 (5) by redesignating the last sentence as sub19 paragraph (C). 

20 SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS. 

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

22 (47 U.S.C. 503(b)) is amended by adding at the end there23 of the following new paragraph: 
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1 ‘‘(7) In the case of an allegation concerning the utter2 ance of obscene, indecent, or profane material that is 

3 broadcast by a station licensee or permittee—

4 ‘‘(A) within 180 days after the date of the re5 ceipt of such allegation, the Commission shall—

6 ‘‘(i) issue the required notice under para7 graph (3) to such licensee or permittee or the 

8 person making such utterance; 

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

10 such licensee or permittee or person in accord11 ance with paragraph (4); or 

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

13 person in writing, and any person submitting 

14 such allegation in writing or by general publica15 tion, that the Commission has determined not 

16 to issue either such notice; and 

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

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

19 penalty or entered into a settlement with the Com20 mission, within 270 days after the date of the re21 ceipt of such allegation, the Commission shall—

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

23 penalty; or 

24 ‘‘(ii) notify such licensee, permittee, or per25 son in writing, and any person submitting such 
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1 allegation in writing or by general publication, 

2 that the Commission has determined not to 

3 issue either such order.’’. 

4 SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROAD5 CAST. 

6 Section 503 of the Communications Act of 1934 (47 

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

8 following new subsection: 

9 ‘‘(c) ADDITIONAL REMEDIES FOR INDECENT BROAD10 CASTING.—In any proceeding under this section in which 

11 the Commission determines that any broadcast station li12 censee or permittee has broadcast obscene, indecent, or 

13 profane material, the Commission may, in addition to im14 posing a penalty under this section, require the licensee 

15 or permittee to broadcast public service announcements 

16 that serve the educational and informational needs of chil17 dren. Such announcements may be required to reach an 

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

19 that is estimated to have been reached by the obscene, in20 decent, or profane material, as determined in accordance 

21 with regulations prescribed by the Commission.’’. 

22 SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF 

23 INDECENCY PROHIBITIONS. 

24 Section 503 of the Communications Act of 1934 (47 

25 U.S.C. 503) is further amended by adding at the end 
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1 (after subsection (c) as added by section 6) the following 

2 new subsection: 

3 ‘‘(d) CONSIDERATION OF LICENSE DISQUALIFICA4 TION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.—

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

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

7 permittee looking toward the imposition of a forfeiture 

8 penalty under this Act based on an allegation that the li9 censee or permittee broadcast obscene, indecent, or pro10 fane material, and either—

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

12 ‘‘(2) a court of competent jurisdiction has or13 dered payment of such forfeiture penalty, and such 

14 order has become final, 

15 then the Commission shall, in any subsequent proceeding 

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

17 whether the broadcast of such material demonstrates a 

18 lack of character or other qualifications required to oper19 ate a station.’’. 

20 SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLA21 TIONS OF INDECENCY PROHIBITIONS. 

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

23 (47 U.S.C. 309(k)) is amended by adding at the end the 

24 following new paragraph:
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1 ‘‘(5) LICENSE RENEWAL CONSIDERATION OF

2 VIOLATIONS OF INDECENCY PROHIBITIONS.—If the 

3 Commission has issued a notice under paragraph (3) 

4 or (4) of section 503(b) to a broadcast station li5 censee or permittee with respect to a broadcast sta6 tion looking toward the imposition of a forfeiture 

7 penalty under this Act based on an allegation that 

8 such broadcast station broadcast obscene, indecent, 

9 or profane material, and—

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

11 or 

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

13 ordered payment of such forfeiture penalty, and 

14 such order has become final, 

15 then such violation shall be treated as a serious vio16 lation for purposes of paragraph (1)(B) of this sub17 section with respect to the renewal of the license or 

18 permit for such station.’’. 

19 SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDE20 CENCY PROHIBITIONS. 

21 Section 312 of the Communications Act of 1934 (47 

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

23 new subsection: 

24 ‘‘(h) LICENSE REVOCATION FOR VIOLATIONS OF IN25 DECENCY PROHIBITIONS.—
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1 ‘‘(1) CONSEQUENCES OF MULTIPLE VIOLA2 TIONS.—If, in each of 3 or more proceedings during 

3 the term of any broadcast license, the Commission 

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

5 503(b) to a broadcast station licensee or permittee 

6 with respect to a broadcast station looking toward 

7 the imposition of a forfeiture penalty under this Act 

8 based on an allegation that such broadcast station 

9 broadcast obscene, indecent, or profane material, 

10 and in each such proceeding either—

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

12 or 

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

14 ordered payment of such forfeiture penalty, and 

15 such order has become final, 

16 then the Commission shall commence a proceeding 

17 under subsection (a) of this section to consider 

18 whether the Commission should revoke the station li19 cense or construction permit of that licensee or per20 mittee for such station. 

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

22 in this subsection shall be construed to limit the au23 thority of the Commission to commence a proceeding 

24 under subsection (a).’’. 
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1 SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF 

2 THE COMMISSION. 

3 (a) REQUIRED CONTENTS.—Each calendar year be4 ginning after the date of enactment of this Act, the Fed5 eral Communications Commission shall submit to the Con6 gress an annual report that includes the following: 

7 (1) The number of complaints received by the 

8 Commission during the years covered by the report 

9 alleging that a broadcast contained obscene, inde10 cent, or profane material, and the number of pro11 grams to which such complaints relate. 

12 (2) The number of those complaints that have 

13 been dismissed or denied by the Commission. 

14 (3) The number of complaints that have re15 mained pending at the end of the years covered by 

16 the annual report. 

17 (4) The number of notices issued by the Com18 mission under paragraph (3) or (4) of section 503(b) 

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

20 503(b)) during the years covered by the report to 

21 enforce the statutes, rules, and policies prohibiting 

22 the broadcasting of obscene, indecent, or profane 

23 material. 

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

25 (A) the amount of the proposed forfeiture; 
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1 (B) the program, station, and corporate 

2 parent to which the notice was issued; 

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

4 which the complaint was filed and the date on 

5 which the notice was issued; and 

6 (D) the status of the proceeding. 

7 (6) The number of forfeiture orders issued pur8 suant to section 503(b) of such Act during the years 

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

10 and policies prohibiting the broadcasting of obscene, 

11 indecent, or profane material. 

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

13 of—

14 (A) the amount assessed by the final for15 feiture order; 

16 (B) the program, station, and corporate 

17 parent to which it was issued; 

18 (C) whether the licensee has paid the for19 feiture order; and 

20 (D) the amount paid by the licensee. 

21 (8) In instances where the licensee has refused 

22 to pay, whether the Commission referred such order 

23 to the Department of Justice to collect the penalty. 

24 (9) In cases where the Commission referred 

25 such order to the Department of Justice—
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1 (A) the number of days from the date the 

2 Commission issued such order to the date the 

3 Commission referred such order to the Depart4 ment; 

5 (B) whether the Department has com6 menced an action to collect the penalty, and if 

7 such action was commenced, the number of 

8 days from the date the Commission referred 

9 such order to the Department to the date the 

10 action by the Department commenced; and 

11 (C) whether the collection action resulted 

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

13 payment, the amount of such payment. 

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

15 the ‘‘years covered’’ by the report required under this sec16 tion shall be the years beginning with calendar year 2000 

17 through the calendar year preceding the year in which the 

18 report is submitted. 

19 SEC. 11. UPDATING GUIDANCE TO THE BROADCAST INDUS20 TRY REGARDING INDECENCY. 

21 Within 9 months after the date of enactment of this 

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

23 Communications Commission shall revise, on the basis of 

24 recent developments in the Commission indecency case 

25 law, the Commission’s policy statement to provide indus-
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1 try guidance on the Commission’s interpretation of, and 

2 enforcement policies regarding, the laws and regulations 

3 concerning broadcast indecency, as contained in the policy 

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

5 2001 (FCC 01–90). 

6 SEC. 12. GAO STUDY OF INDECENT BROADCASTING COM7 PLAINTS. 

8 (a) INQUIRY AND REPORT REQUIRED.—The Govern9 ment Accountability Office shall conduct a study exam10 ining, with respect to calendar year 2000 through the cal11 endar year preceding the year in which the report is sub12 mitted—

13 (1) the number of complaints concerning the 

14 broadcasting of obscene, indecent, and profane mate15 rial to the Federal Communications Commission; 

16 (2) the number of such complaints that result 

17 in final agency actions by the Commission; 

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

19 in responding to such complaints;

20 (4) what mechanisms the Commission has es21 tablished to receive, investigate, and respond to such 

22 complaints; and 

23 (5) whether complainants to the Commission 

24 are adequately informed by the Commission of the 

25 responses to their complaints. 
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1 (b) SUBMISSION OF REPORT.—The Government Ac2 countability Office shall submit a report on the results of 

3 such study within one year after the date of enactment 

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

5 Transportation of the Senate and the Committee on En6 ergy and Commerce of the House of Representatives. 

7 SEC. 13. 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. 14. 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.

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 

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

FEBRUARY 18, 2005

Read the second time and placed on the calendar