U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 110TH CONGRESS

1st Session 

REPORT

2007

110–236 

Calendar No. 521 

PROTECTING CHILDREN FROM INDECENT 

PROGRAMMING ACT 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 1780 

DECEMBER 5, 2007.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

DANIEL K. INOUYE, Hawaii, Chairman 

TED STEVENS, Alaska, Vice-Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS CARPER, Delaware 

CLAIRE McCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

JOHN McCAIN, Arizona 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

MARGARET CUMMISKY, Staff Director and Chief Counsel 

LILA HELMS, Deputy Staff Director and Policy Director 

JEAN TOAL EISEN, Senior Advisor and Deputy Policy Director 

CHRISTINE KURTH, Republican Staff Director and General Counsel 

PAUL J. NAGLE, Republican Chief Counsel 

MIMI BRANIFF, Republican Deputy Chief Counsel 


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Calendar No. 521 

110TH CONGRESS REPORT " ! SENATE 1st Session 110–236 

PROTECTING CHILDREN FROM INDECENT PROGRAMMING 

ACT 

DECEMBER 5, 2007.—Ordered to be printed 

Mr. INOUYE, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 1780] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 1780) to require the FCC, in enforcing its regulations concerning the broadcast of indecent programming, to maintain a policy that a single word or image may be considered indecent, having considered the same, reports favorably 

thereon without amendment and recommends that the bill do pass. 

PURPOSE OF THE BILL

The purpose of S. 1780 is to require the Federal Communications 

Commission (FCC), in administering its regulations concerning the 

broadcast of indecent programming, to maintain a policy that a single word or image may be considered indecent. 

BACKGROUND AND NEEDS

The FCC’s authority to police ‘‘indecent’’ speech stems from section 1464 of title 18, United States Code, which provides that 

‘‘[w]hoever utters any obscene, indecent, or profane language by 

means of radio communications shall be fined or imprisoned not 

more than two years, or both.’’ Sections 503(b)(1)(B) and 

503(b)(1)(D) of the Communications Act of 1934 empower the FCC 

to issue forfeiture penalties for violations of section 1464. The FCC 

first exercised this authority in 1975 when it issued a declaratory 

order identifying seven ‘‘dirty words’’ in a radio monologue by comedian George Carlin as indecent. The agency announced its intenVerDate Aug 31 2005 03:54 Dec 06, 2007 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\SR236.XXX SR236

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tion to restrict the broadcast of such indecent material to hours 

when children would most likely not be in the listening audience. 

The FCC’s indecency policy was upheld by the Supreme Court in 

the landmark decision FCC v. Pacifica Foundation, 438 U.S. 726 

(1978) (Pacifica). In Pacifica, the Court held that broadcasting is 

entitled to more limited First Amendment protection than other 

forms of communication because of its uniquely pervasive presence 

and its unique accessibility to children. 

In the decade that followed Pacifica, the FCC took a more limited approach toward indecency enforcement. For instance, in a 

case where the broadcaster in question had aired programming 

during the morning hours containing some of the terms used in the 

Carlin monologue, the FCC determined that the broadcaster did 

not violate section 1464, because that the language did not amount 

to ‘‘verbal shock treatment’’ and the complainant had failed to show 

that this was more than ‘‘isolated use.’’ Application of Pacifica 

Found., 95 F.C.C.2d 750 at paras. 16, 18 (1983). 

In a 1987 decision, however, the FCC revised the way in which 

it enforced broadcast indecency violations, explaining that the exclusive focus on specific words ‘‘made neither legal nor policy 

sense.’’ Infinity Broad. Corp., 3 FCC Rcd 390 at para. 5. The FCC 

noted that going forward it would use the generic definition of indecency that was used in the order upheld by Pacifica. Under that 

definition, ‘‘language or material that depicts or describes, in terms 

patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.’’ Id. at para. 2. The D.C. Circuit ultimately upheld the FCC’s 

decision to move beyond the narrow specifics of the monologue underlying Pacifica and use this generic definition. Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)(en banc). 

To provide further guidance, the FCC later issued a policy statement on broadcast indecency. Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464, 16 FCC Rcd 7999 

(2001)(Policy Statement). In this Policy Statement, the FCC noted 

that indecent speech is protected by the First Amendment, thus requiring the government to identify a compelling interest for any 

regulation it may impose and choose the least restrictive means to 

further that interest. However, even under this rigorous standard, 

the FCC noted the courts’ consistent support for the FCC’s authority to regulate indecent speech, albeit with certain limitations. Id. 

at para. 3. In particular, the FCC noted the Supreme Court’s recognition in Reno v. ACLU, 521 U.S. 844 (1997), of the ‘‘special justifications for regulation of the broadcast media that are not applicable to other speakers.’’ Policy Statement at para. 4. The FCC 

went on to explain that an indecency finding involves two determinations. First, the FCC considers whether the material at issue 

describes or depicts sexual or excretory organs or activities. Second, 

the FCC considers whether the broadcast is patently offensive as 

measured by contemporary community standards for the broadcast 

medium. 

The FCC noted in its policy statement that it considers three factors in determining whether or not material is patently offensive. 

First, the FCC considers the explicit or graphic nature of the description or depiction of sexual or excretory organs or activities. 

Second, the FCC considers whether the material dwells on or reVerDate Aug 31 2005 03:54 Dec 06, 2007 Jkt 069010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\SR236.XXX SR236

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peats these activities at length. Third, the FCC considers whether 

the material appears to pander or is used to titillate or appears to 

have been presented for its shock value. In discussing the second 

factor in its patently offensive test, the FCC cited examples distinguishing between material that dwells on offensive content and 

material that is fleeting and isolated (Policy Statement at para. 19). 

In 2003, during a live broadcast of the Golden Globe Awards, the 

musician Bono used the F-Word as an adjective before the word 

‘‘brilliant’’ to described an award. In response, the FCC received 

hundreds of complaints. The agency’s Enforcement Bureau initially 

denied the complaints directed at this broadcast on the basis that 

the expletive was not used to describe sexual or excretory organs 

or actions and that the utterance was fleeting and isolated. Complaints Against Various Broadcast Licensees Regarding their Airing 

of the ‘‘Golden Globes Awards’’ Program, 18 FCC Rcd 19859 (Enforcement Bureau 2003). On review, however, the FCC reversed 

the Bureau’s decision, holding that the word at issue has inherently sexual connotation and was patently offensive under contemporary community standards. Complaints Against Various Broadcast Licensees Regarding their Airing of the ‘‘Golden Globes’’ Awards Program, 19 FCC Rcd 4975 at para. 3 (2004) (Golden 

Globes). Furthermore, while noting that its finding was contrary to 

prior rulings relying on the deliberate and repetitive use of patently offensive words, the FCC found that the fleeting and isolated 

use of the word at issue was irrelevant and concluded that its use 

in the context at issue was indecent: 

The ‘‘F-Word’’ is one of the most vulgar, graphic and explicit 

descriptions of sexual activity in the English language. Its use 

invariably invokes a coarse sexual image. The use of the ‘‘FWord’’ here, on a nationally telecast awards ceremony, was 

shocking and gratuitous. In this regard, NBC does not claim 

that there was any political, scientific or other independent 

value of use of the word here, or any other factors to mitigate 

its offensiveness. If the Commission were routinely not to take 

action against isolated and gratuitous uses of such language on 

broadcasts when children ere expected to be in the audience, 

this would likely lead to more widespread use of the offensive 

language. Neither Congress nor the courts have ever indicated 

that broadcasters should be given free rein to air any vulgar 

language, including isolated and gratuitous instances of vulgar 

language. The fact that the use of this word may have been unintentional is irrelevant; it still has the same effect of exposing 

children to indecent language . . . . 

While prior Commission and staff action have indicated that 

isolated or fleeting broadcasts of the ‘‘F-Word’’ such as that 

here are not indecent or would not be acted upon, consistent 

without our decision today we conclude that any such interpretation is no longer good law. In Pacifica Foundation, Inc., 2 

FCC Rcd 2698, 2699 (1987) (subsequent history omitted), for 

example, the Commission stated as follows: ‘‘If a complaint focuses solely on the sue of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a 

requisite to a finding of indecency.’’ The staff has since found 

that the isolated or fleeting use of the ‘‘F-Word’’ is not indecent 


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in situations arguably similar to that here. We now depart 

from this portion of the Commission’s 1987 Pacifica decision as 

well as all of the cases cited in notes 31 and 32 and any similar cases holding that isolated or fleeting use of the ‘‘F-Word’’ or a variant thereof in situations such as this is not indecent 

and conclude that such cases are not good law to that extent. 

We now clarify, as we have made clear with respect to complaints going beyond the use of expletives, that the mere fact 

that specific words or phrases are not sustained or repeated 

does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent. Id. at 

paras. 9, 12 (internal footnotes omitted). 

In making this change in policy, the FCC further commented on 

the development of technologies that licensees could use to bleep 

out even isolated utterances of offending words and on the fact that 

such an outcome might have been foreseeable to licensees given 

prior incidents involving the similar use of offensive language during live broadcasts of award shows. 

Several parties, including broadcasters, filed petitions for reconsideration of the Golden Globes decision. These petitions remain 

pending at the FCC. Nonetheless, the FCC has applied the policy 

announced in Golden Globes in subsequent cases. 

Notably, on February 21, 2006, the FCC issued an order resolving various complaints against several television broadcasts that 

found indecency violations in four separate programs consistent 

with the policy announced in Golden Globes. Complaints Regarding 

Various Television Broadcasts between February 2, 2002 and March 

8, 2005, 21 FCC Rcd 2664 (Omnibus Order). Citing Golden Globes, the FCC dismissed the fact that the expletives used in these four 

programs were fleeting and isolated and again held that repeated 

use is not a prerequisite for a finding of indecency. Nonetheless, 

the FCC declined to issue a forfeiture in these cases in light of the 

fact that the broadcasts at issue occurred before the release of the 

Golden Globes decision. 

Several broadcasters filed a petition for review of the Omnibus 

Order. The action was consolidated in the Second Circuit Court of 

Appeals. Before briefing began, however, the FCC sought a voluntary remand in order to address petitioners’ arguments regarding the ability of licensees to seek a full opportunity to be heard 

before the FCC issues a final decision. The court granted the FCC’s 

request for remand and provided the agency with sixty days to 

issue a final appealable order. In response, the FCC issued a public 

notice seeking comment on its decision in the Omnibus Order. In 

response to the comments it received, the FCC issued a new decision on November 6, 2006. Complaints Regarding Various Television Broadcasts between February 2, 2002 and March 8, 2005, 

FCC 06-166 (Remand Order). 

In the Remand Order, the FCC reaffirmed its earlier finding 

with respect to two of the four programs it had found indecent in 

the Omnibus Order. Specifically, the FCC reaffirmed its finding 

that remarks featured in the 2002 and 2003 Billboard Music 

Awards programs were indecent. In the 2002 Billboard Music 

Awards program, Cher stated: ‘‘People have been telling me I’m on 

the way out every year, right? So f*** ’em.’’ In the 2003 Billboard 


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Music Awards program, Nicole Richie stated: ‘‘Have you ever tried 

to get cow sh** out of a Prada purse? It’s not so f***ing simple.’’

Moreover, the FCC noted that the remarks in the 2003 Billboard 

Music Awards would have been actionably indecent prior to its 

Golden Globes decision because of the repeated use of offensive language. 

In the Remand Order, the FCC also reversed its earlier finding 

with respect to one of the four programs it had found indecent in 

the Omnibus Order, because it occurred in the context of a bona 

fide news interview. The language at issue was heard during a live 

interview on the CBS Early Show of a contestant from the CBS reality show Survivor. The FCC noted that in light of First Amendment concerns, this required proceeding ‘‘with the utmost restraint 

when it comes to news programming.’’ Id. at paras. 71-72. In addition, on review, the FCC dismissed the complaint underlying one 

of the four programs it had found indecent in the Omnibus Order 

because the lone individual complaining of the material resided in 

an area of the country where it was broadcast during the ‘‘safe harbor’’ period after 10 p.m. Id. at para. 75; see also 47 C.F.R. section 

73.999(b). 

Following the release of the Remand Order, the broadcasters’ appeal of the Omnibus Order was automatically reinstated in the Second Circuit Court of Appeals. On June 7, 2007, the court released 

a decision remanding the FCC’s efforts to declare ‘‘fleeting 

expletives’’ indecent speech. Fox v. FCC, 489 F.3d 444 (2nd Cir. 

2007) (Fox). In a divided opinion, the majority concluded that the 

FCC decision sanctioning fleeting expletives was arbitrary and capricious under the Administrative Procedure Act. Specifically, the 

majority concluded that the FCC departed from its prior precedent 

without providing a reasoned analysis explaining why it was doing 

so. Though the Fox holding was procedural, the majority decision 

continued in dicta to question if it would be constitutionally permissible for the agency to sanction fleeting expletives as indecent 

speech. In concluding, the majority went so far as to suggest their 

doubts that the FCC would be able to proffer a revised analysis 

that would meet constitutional muster. 

In contrast, the dissenting judge found that the FCC gave a reasoned explanation for its change of policy and therefore complied 

with the Administrative Procedure Act. The dissenting judge further noted that agencies are not locked into statutory interpretations but are free to change standards as their expertise and experience may require. 

S. 1780 would clarify the authority of the FCC to regulate indecent speech in light of the Fox decision. Specifically, it would clarify 

that in enforcing Federal restrictions on the broadcast of indecent 

or profane material, the FCC shall maintain a policy that indecent 

or profane material may include a single word or image. In so 

doing, the legislation does not require the FCC to adopt a per se 

rule in considering whether isolated utterances of offensive language constitute an indecency violation. Rather, the legislation allows the FCC to continue its consideration of the full context in 

which the material appeared when considering whether material is 

patently offensive. The FCC has never had an exception to its indecency enforcement policies for isolated images, and the Fox decision 


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addressed only spoken expletives. In order to be complete, however, 

S.1780 would include images as well as utterances. 

SUMMARY OF PROVISIONS

S. 1780, the Protecting Children from Indecent Programming 

Act, would amend the Public Telecommunications Act of 1992 by 

requiring the FCC, in enforcing its regulations concerning the 

broadcast of indecent programming, to maintain a policy that a single word or image may be considered indecent. 

LEGISLATIVE HISTORY

The Protecting Children from Indecent Programming Act (S. 

1780) was introduced by Senator Rockefeller on July 12, 2007, and 

referred to the Senate Committee on Commerce, Science, and 

Transportation. The bill is cosponsored by Senators Inouye, Stevens, Pryor, McCain, Byrd and Brownback. On July 19, 2007, the 

Committee considered the bill in an open Executive Session. The 

bill was adopted by voice vote. The Committee, without objection, 

ordered that S. 1780 be reported. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 1780—Protecting Children from Indecent Programming Act 

S. 1780 would require the Federal Communications Commission 

(FCC) to maintain its current policy that a single word or image 

may constitute indecent programming. The FCC considers such actions to fall within its authority and levies penalties when violations occur. As a result, single words or images that are considered 

to be indecent, obscene, or profane can draw civil penalties (which 

are recorded in the budget as revenues). CBO estimates that enacting the bill would have no effect on revenues over the 2008–2017 

period, and also would have no other impact on the budget. 

According to the FCC, cases in which a single word or image are 

broadcast that would be considered obscene, indecent, or profane 

are very infrequent, but fines levied by the FCC for such actions 

have resulted in some court challenges by the broadcasters. This 

legislation would clarify the statutory basis for the FCC’s current 

policy. 

S. 1780 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on public or private entities. Because the bill would 

codify existing policy, it would not impose a new enforceable duty 

on public or private broadcasters. 

The CBO contact for this estimate is Barbara Edwards. The estimate was approved by G. Thomas Woodward, Assistant Director 

for Tax Analysis. 


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REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 1780 is intended to require the FCC, in enforcing its regulations concerning the broadcast of indecent programming, to maintain a policy that a single work or image may be considered indecent. The persons subject to the regulations the FCC would implement under this bill are broadcast licensees already subject to FCC 

authority to police obscene, indecent, or profane language by means 

of radio communications under section 1464 of title 18, United 

States Code. 

ECONOMIC IMPACT

S. 1780 would not have an adverse impact on the Nation’s economy. 

PRIVACY

The reported bill would have no impact on the personal privacy 

of United States citizens. 

PAPERWORK

The reported bill should not significantly increase paperwork requirements for individuals and businesses. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

The short title would provide that the Act could be cited as the 

‘‘Protecting Children from Indecent Programming Act’’. 

Section 2. FCC may regard single word or image as indecent 

Section 2 would amend the Public Telecommunications Act of 

1992 by adding a new subsection (c). 

New subsection (c) would direct the FCC, in administering its 

regulations concerning the broadcast of indecent programming, to 

maintain a policy that a single word or image may be considered 

indecent. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): 


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PUBLIC TELECOMMUNICATIONS ACT OF 1992 

BROADCASTING OF INDECENT PROGRAMMING

[47 U.S.C. 303 note] 

SEC. 16. (a) FCC REGULATIONS.—The Federal Communications 

Commission shall promulgate regulations to prohibit the broadcasting of indecent programming— (1) between 6 a.m. and 10 p.m. on any day by any public 

radio station or public television station that goes off the air 

at or before 12 midnight; and 

(2) between 6 a.m. and 12 midnight on any day for any radio 

or television broadcasting station not described in paragraph 

(1). 

The regulations required under this subsection shall be promulgated in accordance with section 553 of title 5, United States Code, 

and shall become final not later than 180 days after the date of enactment of this Act. 

(b) REPEAL.—Section 6078 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations 

Act, 1989 (Public Law 100–459; 102 Stat. 2228) is repealed. 

(c) SINGLE WORD OR IMAGE POLICY.—In administering the regulations promulgated under subsection (a), the Commission shall 

maintain a policy that a single word or image may constitute indecent programming. 

Æ 


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