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Union Calendar No. 251

108TH CONGRESS 

2D SESSION H. R. 3717

[Report No. 108–434] 

To increase the penalties for violations by television and radio broadcasters 

of the prohibitions against transmission of obscene, indecent, and profane 

language. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 21, 2004

Mr. UPTON (for himself, Mr. MARKEY, Mr. TAUZIN, Mr. DINGELL, Mr. BILIRAKIS, Mr. BARTON of Texas, Mr. STEARNS, Mr. GILLMOR, Mr. BASS, 

Mr. GREENWOOD, Mr. BURR, Mr. BLUNT, Mr. SHIMKUS, Mr. TERRY, 

Mr. WELDON of Pennsylvania, Mr. WOLF, Mr. SMITH of Texas, Mr. 

GREEN of Texas, Mrs. WILSON of New Mexico, Mr. GORDON, Mr. 

WHITFIELD, Mrs. BONO, Ms. MCCARTHY of Missouri, Mr. WYNN, Mrs. 

CUBIN, and Mr. PITTS) introduced the following bill; which was referred 

to the Committee on Energy and Commerce 

MARCH 9, 2004

Additional sponsors: Mr. EHLERS, Mr. MATHESON, Mr. JONES of North Carolina, Mr. EVERETT, Mr. ROGERS of Michigan, Mrs. NORTHROP, Mr. 

OSBORNE, Mr. LEWIS of Kentucky, Mr. BARRETT of South Carolina, Mr. 

ROSS, Mr. HINCHEY, Mr. BAKER, Mr. BEREUTER, Mr. FORBES, Mr. 

OXLEY, Mr. NETHERCUTT, Ms. KAPTUR, Mrs. MYRICK, Mr. DEAL of 

Georgia, Mr. SKELTON, Mr. SPRATT, Mr. COSTELLO, Mr. SMITH of 

Michigan, Mr. TIBERI, Mr. FERGUSON, Mr. GREEN of Wisconsin, Mr. 

HAYES, Ms. CARSON of Indiana, Ms. DELAURO, Mr. TIAHRT, Mrs. MILLER of Michigan, Mrs. JOHNSON of Connecticut, Mr. SCOTT of Georgia, 

Mr. SHADEGG, Mr. TURNER of Texas, Mr. LINDER, Mr. ROGERS of Alabama, Mr. BERRY, Mr. SIMMONS, Mr. KENNEDY of Minnesota, Mr. CALVERT, Mr. GARY G. MILLER of California, Mr. CAMP, Mr. MCINTYRE, 

Mr. HOEKSTRA, Mr. TAYLOR of North Carolina, Mr. BURGESS, Mr. 

OLVER, Mr. KNOLLENBERG, Mr. LATHAM, Ms. ESHOO, Mr. NEY, Mr. 

BOEHLERT, Mr. BUYER, Mr. TOOMEY, Mr. PETRI, Mr. TURNER of Ohio, 

Mr. TAYLOR of Mississippi, Mr. DOOLITTLE, Mr. CULBERSON, Mr. 

NEUGEBAUER, Mr. SOUDER, Mr. CARTER, Mr. HERGER, Mr. DAVIS of 
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Florida, Mr. BACHUS, Mr. GONZALEZ, Mr. AKIN, Mr. JOHNSON of Illinois, Mr. ETHERIDGE, Ms. HART, Mr. SANDLIN, Mr. SHUSTER, Mr. COLLINS, Mr. HUNTER, Mr. DEUTSCH, Mr. WALDEN of Oregon, Mr. SAM

JOHNSON of Texas, Mr. BEAUPREZ, Mr. QUINN, Mr. FRELINGHUYSEN, 

Mr. RYUN of Kansas, Mrs. JO ANN DAVIS of Virginia, Mr. RUSH, Mr. 

GOODLATTE, Mr. GOODE, Mr. WICKER, Mr. COLE, Mr. CRAMER, Mr. 

WELDON of Florida, Mr. PRICE of North Carolina, Mr. BRADLEY of New 

Hampshire, Mr. HASTINGS of Washington, Mr. MILLER of Florida, Mr. 

BOOZMAN, Mr. HOLDEN, Mr. KIRK, Mr. HALL, Ms. MAJETTE, Mr. PUTNAM, Mr. LATOURETTE, Mr. WAMP, Mr. ADERHOLT, Mr. MURPHY, Mr. 

SESSIONS, Mr. WILSON of South Carolina, Mr. BONNER, Mr. SMITH of 

New Jersey, Ms. ROYBAL-ALLARD, Ms. GRANGER, Mr. OTTER, Mr. NORWOOD, Mr. PICKERING, Mr. SHAYS, Mr. SIMPSON, Mr. MANZULLO, Mr. 

BOYD, Mr. KLINE, Mr. STENHOLM, and Mr. KING of Iowa. 

MARCH 9, 2004

Reported with amendments, committed to the Committee of the Whole House 

on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on January 21, 2004] 

A BILL

To increase the penalties for violations by television and 

radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language.

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 En5 forcement Act of 2004’’. 

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

7 AND PROFANE BROADCASTS. 

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

9 (47 U.S.C. 503(b)(2)) is amended—
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1 (1) by redesignating subparagraphs (C) and (D) 

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

3 (2) by inserting after subparagraph (B) the fol4 lowing new subparagraph: 

5 ‘‘(C) Notwithstanding subparagraph (A), if the viola6 tor is (i) a broadcast station licensee or permittee, or (ii) 

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

8 or other instrument or authorization issued by the Commis9 sion, and the violator is determined by the Commission 

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

11 or profane material, the amount of any forfeiture penalty 

12 determined under this section shall not exceed $500,000 for 

13 each violation.’’; and 

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

15 paragraph (1) of this subsection—

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

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

18 and 

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

20 ‘‘Notwithstanding the preceding sentence, if the 

21 violator is determined by the Commission under 

22 paragraph (1) to have uttered obscene, indecent, 

23 or profane material (and the case is not covered 

24 by subparagraph (A), (B), or (C)), the amount 

25 of any forfeiture penalty determined under this 
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1 section shall not exceed $500,000 for each viola2 tion.’’. 

3 SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; 

4 EXCEPTION. 

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

6 (47 U.S.C. 503(b)(2)) is further amended by adding at the 

7 end (after subparagraph (E) as redesignated by section 2(1) 

8 of this Act) the following new subparagraphs: 

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

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

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

12 Commission shall take into account, in addition to the mat13 ters described in subparagraph (E), the following factors: 

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

15 the violator, the following:

16 ‘‘(I) whether the material uttered by the vio17 lator was live or recorded, scripted or unscripted; 

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

19 opportunity to review recorded or scripted pro20 gramming or had a reasonable basis to believe 

21 live or unscripted programming may contain ob22 scene, indecent, or profane material; 

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

24 unscripted programming, whether a time delay 
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1 blocking mechanism was implemented for the 

2 programming; 

3 ‘‘(IV) the size of the viewing or listening au4 dience of the programming; and 

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

6 a children’s television program as described in 

7 the Commission’s children’s television program8 ming policy (47 CFR 73.4050(c)). 

9 ‘‘(ii) With respect to the violator’s ability to pay, 

10 the following: 

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

12 individual; and 

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

14 of the company and the size of the market served. 

15 ‘‘(G) A broadcast station licensee or permittee that re16 ceives programming from a network organization, but that 

17 is not owned or controlled, or under common ownership or 

18 control with, such network organization, shall not be subject 

19 to a forfeiture penalty under this subsection for broad20 casting obscene, indecent, or profane material, if—

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

22 programming provided by the network organization 

23 to the licensee or permittee; and 

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

25 scripted, and the licensee or permittee was not given 
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1 a reasonable opportunity to review the programming 

2 in advance; or 

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

4 and the licensee or permittee had no reasonable basis 

5 to believe the programming would contain obscene, in6 decent, or profane material. 

7 The Commission shall by rule define the term ‘network or8 ganization’ for purposes of this subparagraph.’’. 

9 SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES. 

10 Section 503(b)(5) of the Communications Act of 1934 

11 (47 U.S.C. 503(b)(5) is amended—

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

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

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

15 (3) by redesignating the second sentence as sub16 paragraph (B); 

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

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

19 paragraph shall not apply, however,’’ and insert20 ing ‘‘The provisions of subparagraph (A) shall 

21 not apply (i)’’; 

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

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

24 (C) by striking ‘‘or in the case of’’ and in25 serting ‘‘(iii) in the case of’’; and 
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1 (D) by inserting after ‘‘that tower’’ the fol2 lowing: ‘‘, or (iv) in the case of a determination 

3 that a person uttered obscene, indecent, or pro4 fane material that was broadcast by a broadcast 

5 station licensee or permittee, if the person is de6 termined to have willfully or intentionally made 

7 the utterance’’; and 

8 (5) by redesignating the last sentence as sub9 paragraph (C). 

10 SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS. 

11 Section 503(b) of the Communications Act of 1934 (47 

12 U.S.C. 503(b)) is amended by adding at the end thereof the 

13 following new paragraph: 

14 ‘‘(7) In the case of an allegation concerning the utter15 ance of obscene, indecent, or profane material that is broad16 cast by a station licensee or permittee—

17 ‘‘(A) within 180 days after the date of the receipt 

18 of such allegation, the Commission shall—

19 ‘‘(i) issue the required notice under para20 graph (3) to such licensee or permittee or the 

21 person making such utterance; 

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

23 such licensee or permittee or person in accord24 ance with paragraph (4); or 
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1 ‘‘(iii) notify such licensee, permittee, or per2 son in writing, and any person submitting such 

3 allegation in writing or by general publication, 

4 that the Commission has determined not to issue 

5 either such notice; and 

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

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

8 penalty or entered into a settlement with the Commis9 sion, within 270 days after the date of the receipt of 

10 such allegation, the Commission shall—

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

12 penalty; or 

13 ‘‘(ii) notify such licensee, permittee, or per14 son in writing, and any person submitting such 

15 allegation in writing or by general publication, 

16 that the Commission has determined not to issue 

17 either such order.’’. 

18 SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROAD19 CAST. 

20 Section 503 of the Communications Act of 1934 (47 

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

22 following new subsection: 

23 ‘‘(c) ADDITIONAL REMEDIES FOR INDECENT BROAD24 CASTING.—In any proceeding under this section in which 

25 the Commission determines that any broadcast station li-
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1 censee or permittee has broadcast obscene, indecent, or pro2 fane material, the Commission may, in addition to impos3 ing a penalty under this section, require the licensee or per4 mittee to broadcast public service announcements that serve 

5 the educational and informational needs of children. Such 

6 announcements may be required to reach an audience that 

7 is up to 5 times the size of the audience that is estimated 

8 to have been reached by the obscene, indecent, or profane 

9 material, as determined in accordance with regulations pre10 scribed by the Commission.’’. 

11 SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF 

12 INDECENCY PROHIBITIONS. 

13 Section 503 of the Communications Act of 1934 (47 

14 U.S.C. 503) is further amended by adding at the end (after 

15 subsection (c) as added by section 6) the following new sub16 section: 

17 ‘‘(d) CONSIDERATION OF LICENSE DISQUALIFICATION

18 FOR VIOLATIONS OF INDECENCY PROHIBITIONS.—If the

19 Commission issues a notice under paragraph (3) or (4) of 

20 subsection (b) to a broadcast station licensee or permittee 

21 looking toward the imposition of a forfeiture penalty under 

22 this Act based on an allegation that the licensee or permittee 

23 broadcast obscene, indecent, or profane material, and ei24 ther—

25 ‘‘(1) such forfeiture penalty has been paid, or 
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1 ‘‘(2) a forfeiture penalty has been determined by 

2 the Commission or an administrative law judge pur3 suant to paragraph (3) or (4) of subsection (b), and 

4 such penalty is not under review, and has not been 

5 reversed, by a court of competent jurisdiction, 

6 then, notwithstanding section 504(c), the Commission shall, 

7 in any subsequent proceeding under section 308(b) or 

8 310(d), take into consideration whether the broadcast of 

9 such material demonstrates a lack of character or other 

10 qualifications required to operate a station.’’. 

11 SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLA12 TIONS OF INDECENCY PROHIBITIONS. 

13 Section 309(k) of the Communications Act of 1934 (47 

14 U.S.C. 309(k)) is amended by adding at the end the fol15 lowing new paragraph: 

16 ‘‘(5) LICENSE RENEWAL CONSIDERATION OF VIO17 LATIONS OF INDECENCY PROHIBITIONS.—If the Com18 mission has issued a notice under paragraph (3) or 

19 (4) of section 503(b) to a broadcast station licensee or 

20 permittee with respect to a broadcast station looking 

21 toward the imposition of a forfeiture penalty under 

22 this Act based on an allegation that such broadcast 

23 station broadcast obscene, indecent, or profane mate24 rial, and—
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1 ‘‘(A) such forfeiture penalty has been paid, 

2 or 

3 ‘‘(B) a forfeiture penalty has been deter4 mined by the Commission or an administrative 

5 law judge pursuant to paragraph (3) or (4) of 

6 section 503(b), and such penalty is not under re7 view, and has not been reversed, by a court of 

8 competent jurisdiction, 

9 then, notwithstanding section 504(c), such violation 

10 shall be treated as a serious violation for purposes of 

11 paragraph (1)(B) of this subsection with respect to 

12 the renewal of the license or permit for such station.’’. 

13 SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDE14 CENCY PROHIBITIONS. 

15 Section 312 of the Communications Act of 1934 (47 

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

17 new subsection: 

18 ‘‘(h) LICENSE REVOCATION FOR VIOLATIONS OF INDE19 CENCY PROHIBITIONS.—

20 ‘‘(1) CONSEQUENCES OF MULTIPLE VIOLA21 TIONS.—If, in each of 3 or more proceedings during 

22 the term of any broadcast license, the Commission 

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

24 503(b) to a broadcast station licensee or permittee 

25 with respect to a broadcast station looking toward the 
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1 imposition of a forfeiture penalty under this Act 

2 based on an allegation that such broadcast station 

3 broadcast obscene, indecent, or profane material, and 

4 in each such proceeding either—

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

6 or 

7 ‘‘(B) a forfeiture penalty has been deter8 mined by the Commission or an administrative 

9 law judge pursuant to paragraph (3) or (4) of 

10 section 503(b), and such penalty is not under re11 view, and has not been reversed, by a court of 

12 competent jurisdiction, 

13 then, notwithstanding section 504(c), the Commission 

14 shall commence a proceeding under subsection (a) of 

15 this section to consider whether the Commission 

16 should revoke the station license or construction per17 mit of that licensee or permittee for such station. 

18 ‘‘(2) PRESERVATION OF AUTHORITY.—Nothing in 

19 this subsection shall be construed to limit the author20 ity of the Commission to commence a proceeding 

21 under subsection (a).’’. 

22 SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF 

23 THE COMMISSION. 

24 Each annual report submitted by the Federal Commu25 nications Commission after the date of enactment of this 
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1 Act shall, in accordance with section 4(k)(2) of the Commu2 nications Act of 1934 (47 U.S.C. 154(k)(2)), include the fol3 lowing: 

4 (1) The number of complaints received by the 

5 Commission during the year covered by the report al6 leging that a broadcast contained obscene, indecent, or 

7 profane material, and the number of programs to 

8 which such complaints relate. 

9 (2) The number of those complaints that have 

10 been dismissed or denied by the Commission. 

11 (3) The number of complaints that have re12 mained pending at the end of the year covered by the 

13 annual report. 

14 (4) The number of notices issued by the Commis15 sion under paragraph (3) or (4) of section 503(b) of 

16 the Communications Act of 1934 (47 U.S.C. 503(b)) 

17 during the year covered by the report to enforce the 

18 statutes, rules, and policies prohibiting the broad19 casting of obscene, indecent, or profane material.

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

21 (A) the amount of the proposed forfeiture; 

22 (B) the program, station, and corporate 

23 parent to which the notice was issued; 
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1 (C) the length of time between the date on 

2 which the complaint was filed and the date on 

3 which the notice was issued; and 

4 (D) the status of the proceeding. 

5 (6) The number of forfeiture orders issued pursu6 ant to section 503(b) of such Act during the year cov7 ered by the report to enforce the statutes, rules, and 

8 policies prohibiting the broadcasting of obscene, inde9 cent, or profane material. 

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

11 of—

12 (A) the amount assessed by the final for13 feiture order; 

14 (B) the program, station, and corporate 

15 parent to which it was issued; 

16 (C) whether the licensee has paid the for17 feiture order; 

18 (D) the amount paid by the licensee; and 

19 (E) in instances where the licensee refused 

20 to pay, whether the Department of Justice 

21 brought an action in Federal court to collect the 

22 penalty. 
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1 SEC. 11. SENSE OF THE CONGRESS. 

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

3 Congress that the broadcast television station licensees 

4 should reinstitute a family viewing policy for broadcasters. 

5 (b) DEFINITION.—For purposes of this section, a fam6 ily viewing policy is a policy similar to the policy that 

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

8 of the National Association of Broadcaster’s code of conduct 

9 for television, and that included the concept of a family 

10 viewing hour. 

11 SEC. 12. IMPLEMENTATION. 

12 (a) REGULATIONS.—The Commission shall prescribe 

13 regulations to implement the amendments made by this Act 

14 within 180 days after the date of enactment of this Act. 

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

16 amendments made by this Act shall not apply with respect 

17 to material broadcast before the date of enactment of this 

18 Act. 

19 (c) SEPARABILITY.—Section 708 of the Communica20 tions Act of 1934 (47 U.S.C. 608) shall apply to this Act 

21 and the amendments made by this Act.

Amend the title so as to read: ‘‘A bill to increase the 

penalties for violations by television and radio broadcasters of the prohibitions against transmission of ob-
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scene, indecent, and profane material, and for other purposes.’’.

Union Calendar No. 251

108TH CONGRESS 

2D SESSION H. R. 3717

[Report No. 108–434] 

A BILL

To increase the penalties for violations by television 

and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language. 

MARCH 9, 2004

Reported with amendments, committed to the Committee 

of the Whole House on the State of the Union, and ordered to be printed