108TH CONGRESS

2D SESSION H. R. 3717

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 2004’’.

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; and

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

24 of the company and the size of the market

25 served.
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1 ‘‘(G) A broadcast station licensee or permittee that

2 receives programming from a network organization, but

3 that is not owned or controlled, or under common owner4 ship or control with, such network organization, shall not

5 be subject to a forfeiture penalty under this subsection for

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

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

8 programming provided by the network organization

9 to the licensee or permittee; and

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

11 scripted, and the licensee or permittee was not given

12 a reasonable opportunity to review the programming

13 in advance; or

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

15 and the licensee or permittee had no reasonable

16 basis to believe the programming would contain ob17 scene, indecent, or profane material.

18 The Commission shall by rule define the term ‘network

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

20 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

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

22 1934 (47 U.S.C. 503(b)(5) is amended—

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

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

25 (2) by inserting ‘‘(A)’’ after ‘‘(5)’’;
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1 (3) by redesignating the second sentence as

2 subparagraph (B);

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

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

5 paragraph shall not apply, however,’’ and in6 serting ‘‘The provisions of subparagraph (A)

7 shall not apply (i)’’;

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

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

10 (C) by striking ‘‘or in the case of’’ and in11 serting ‘‘(iii) in the case of’’; and

12 (D) by inserting after ‘‘that tower’’ the fol13 lowing: ‘‘, or (iv) in the case of a determination

14 that a person uttered obscene, indecent, or pro15 fane material that was broadcast by a broadcast

16 station licensee or permittee, if the person is

17 determined to have willfully or intentionally

18 made the utterance’’; and

19 (5) by redesignating the last sentence as sub20 paragraph (C).

21 SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

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

23 (47 U.S.C. 503(b)) is amended by adding at the end there24 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 Each annual report submitted by the Federal Com4 munications Commission after the date of enactment of

5 this Act shall, in accordance with section 4(k)(2) of the

6 Communications Act of 1934 (47 U.S.C. 154(k)(2)), in7 clude the following:

8 (1) The number of complaints received by the

9 Commission during the year covered by the report

10 alleging that a broadcast contained obscene, inde11 cent, or profane material, and the number of pro12 grams to which such complaints relate.

13 (2) The number of those complaints that have

14 been dismissed or denied by the Commission.

15 (3) The number of complaints that have re16 mained pending at the end of the year covered by

17 the annual report.

18 (4) The number of notices issued by the Com19 mission under paragraph (3) or (4) of section 503(b)

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

21 503(b)) during the year covered by the report to en22 force the statutes, rules, and policies prohibiting the

23 broadcasting of obscene, indecent, or profane mate24 rial.

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

26 (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 year

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 SEC. 11. GAO STUDY OF INDECENT BROADCASTING COM15 PLAINTS.

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

17 Accounting Office shall conduct a study examining—

18 (1) the number of complaints concerning the

19 broadcasting of obscene, indecent, and profane mate20 rial to the Federal Communications Commission;

21 (2) the number of such complaints that result

22 in final agency actions by the Commission;

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

24 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 General Account8 ing Office shall submit a report on the results of such

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

10 Act to the Committee on Commerce, Science, and Trans11 portation of the Senate and the Committee on Energy and

12 Commerce of the House of Representatives.

13 SEC. 12. 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. 13. 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 March 11,

2004.

Attest:

Clerk.
108TH CONGRESS

2D SESSION H. R. 3717

AN ACT

To increase the penalties for violations by television

and radio broadcasters of the prohibitionsagainst transmission of obscene, indecent, andprofane material, and for other purposes.