" ! SENATE 108TH CONGRESS

2d Session 

REPORT

108–253 

Calendar No. 471 

BROADCAST DECENCY ENFORCEMENT 

ACT OF 2004 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2056 

APRIL 5, 2004.—Ordered to be printed 


congress.#13
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK LAUTENBERG, New Jersey 

JEANNE BUMPUS, Staff Director and General Counsel 

ROB FREEMAN, Deputy Staff Director 

ROBERT W. CHAMBERLIN, Chief Counsel 

KEVIN D. KAYES, Democratic Staff Director and Chief Counsel 

GREGG ELIAS, Democratic General Counsel 

(II) 

Calendar No. 471 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–253 

BROADCAST DECENCY ENFORCEMENT ACT OF 2004 

APRIL 5, 2004.—Ordered to be printed 

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

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2056] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2056) ‘‘A Bill To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane 

language,’’ having considered the same, reports favorably thereon 

with amendments, and an amendment to the title, and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

The objective of this legislation is to increase and strengthen the 

enforcement mechanisms available to the Federal Communications 

Commission (FCC or Commission) to combat the broadcasting of indecent, obscene, and profane material over the airwaves. The legislation is also intended to assess the effectiveness of technological 

tools designed to block violent programming, and if necessary, prohibit the distribution of violent programming during hours when 

children are likely to comprise a substantial portion of the audience. 

BACKGROUND AND NEEDS

Since the inception of the Commission, Congress has been concerned with indecent and obscene material broadcast over the airwaves. Both the Radio Act of 1927 and The Communications Act 

of 1934 (the Act) vested the agency with the authority to regulate 

obscene, indecent, and profane material. In 1948, Congress codified 

section 1464 in the criminal code, which states, ‘‘Whoever utters 

any obscene, indecent, or profane language by means of radio comVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
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munication shall be fined under this title or imprisoned not more 

than two years, or both.’’ The FCC is charged with enforcing section 1464 and has promulgated rules prohibiting radio and television stations from broadcasting indecent material between 6 a.m. and 10 p.m. For those 

who violate the rules, the FCC may issue warnings, impose monetary fines (up to $27,500 for each violation or up to $275,000 for 

a continuing violation for a broadcast station licensees and $11,000 

for non-licensees who have received a prior warning, i.e. performers), or revoke licenses for the airing of indecent material. 

The increase in the number of indecency complaints filed at the 

Commission demonstrates the public’s concern over the recent 

surge in indecent content on radio and television. The number of 

complaints increased from 111 in 2000 to 2,240,350 in 2003. The 

number of complaints filed in 2004 is on pace to exceed the number 

filed in 2003. 

A study conducted by the Parents Television Council (PTC), and 

published in its report titled, ‘‘The Blue Tube: Foul Language on 

Prime Time Network TV,’’ concluded that ‘‘foul language during the 

Family Hour [8 p.m. to 9 p.m.] increased by 94.8 percent between 

1998 and 2002.’’ The pervasiveness of indecent material has fueled 

competition among broadcasters to push the envelope for more and 

more questionable content. As described in the PTC report: ‘‘Once 

the initial taboo is broken and the shock value wears off, more and 

more curse words fall into the category of ‘acceptable’ language, 

and TV must try to up the ante by introducing new words to prime 

time TV’s obscene lexicon.’’ Due to the increase in complaints, the Commission has indicated 

recently a willingness to toughen its enforcement against the 

broadcasting of indecent and obscene material. However, besides a 

paltry 10 percent increase for inflation, these statutory limits on 

fines have not been increased since 1991. As a result, the current 

statutory limits on fines, even if they are enforced more rigorously, 

appear to be a mere cost of doing business rather than a deterrent 

to broadcasting obscene, indecent, or profane material. S. 2056 was 

introduced to enhance the FCC’s enforcement capability by increasing these fines. 

While the FCC has rules, although deficient, governing the 

broadcasting of indecent programming, it has not adopted similar 

regulations to protect children from exposure to violent programming on television. The Telecommunications Act of 1996 (1996 Act) 

included a provision requiring all television sets manufactured 

after January 1, 2000, to contain a ‘‘V-Chip,’’ a feature that provides parents with the ability to block the display of certain programming based on a program’s rating. An April 2000 survey conducted by the Kaiser Family Foundation, found that only 9 percent 

of parents of children ages 2-17 had a television with a V-Chip, 

only 3 percent of all parents had ever used the V-Chip to block programming, and 39 percent of parents surveyed had never heard of 

the V- Chip. 

The American Psychological Association (APA) reports that by 

the time a child who watches 2 to 4 hours of television daily leaves 

elementary school, he or she will witness at least 8,000 murders 

and more than 100,000 other assorted acts of violence on television. 

Psychological research has also shown that children who watch vioVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
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1 Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd 7999 (2001). 2 Action for Children’s Television v. FCC, 58 F.3d 654, (D.C. Cir. 1995), herein after ACT IV. 

lence on television may become less sensitive to the pain and suffering of others, may be more fearful of the world around them, 

and may be more likely to behave in aggressive or harmful ways 

toward others. 

I. INDECENT PROGRAMMING ON RADIO AND TELEVISION 

A. INDECENCY REGULATION

The FCC defines ‘‘indecent speech’’ as ‘‘language or material that, 

in context, depicts or describes, in terms patently offensive as 

measured by contemporary community standards for the broadcast 

medium, sexual or excretory activities or organs.’’ In applying the 

‘‘community standards’’ criterion, the FCC has stated, ‘‘the determination as to whether certain programming is patently offensive 

is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast 

viewer or listener and not the sensibilities of any individual complainant.’’ 1 Additionally, to be found indecent the material must be 

broadcast at a time of day when children are likely to be in the audience—between the hours of 6 a.m. and 10 p.m.2

The Supreme Court decision establishing the judicial foundation 

for the FCC’s indecency enforcement authority, is FCC v. Pacifica 

Foundation, 438 U.S. 726 (1978). In Pacifica, the Supreme Court 

upheld an FCC ruling finding indecent, but not obscene, a twelveminute routine by comedian George Carlin. Upholding the FCC’s 

actions, the Supreme Court emphasized the fact that the broadcast 

media pervades society and that once unexpected program content 

is heard, the damage is done: ‘‘To say that one may avoid further 

offense by turning off the radio when he hears indecent language 

is like saying that the remedy for an assault is to run away after 

the first blow.’’ Additionally, the Court noted that ‘‘broadcasting is 

uniquely accessible to children, even those too young to read,’’ and 

that the government’s interest in the well-being of its youth and in 

supporting parental control in the household justified regulation. 

As a result, the Court found that under these circumstances, the 

FCC could sanction those who broadcast indecent—even if not obscene—language. 

B. COMMISSION ENFORCEMENT ACTION

Some critics argue that the current process is largely ineffective 

and puts too many burdens on complainants. In particular, these 

critics note that in 2003 the FCC received about 240,000 complaints concerning approximately 375 radio and television programs, and issued a total of 3 fines. The indecency complaint process also has been criticized for allowing complaints to languish, 

which has in some cases resulted in the FCC being forced to dismiss a complaint because the statute of limitations has run. Since 

2000, the number of indecency complaints has risen to a record 

high. 

4 

Year 

No. of complaints received 

No. of programs reflected in 

such complaints 

No. of complaints denied 

or dismissed 

by year-end 

No. of complaints pending at yearend 

2004 ............................................................................................... 530,885 23 .................... ....................

2003 ............................................................................................... 2,240,350 318 368 239,982 

2002 ............................................................................................... 13,922 345 13,258 664 

2001 ............................................................................................... 346 152 242 104 

2000 ............................................................................................... 111 101 37 72 

Until 2003, the highest indecency fine the FCC had imposed was $35,000 to WQAM (Miami, FL) for a five-day indecent broadcast. 

In 1995, the FCC issued Notices of Apparent Liability (NAL) of 

$400,000, $500,000, and $600,000 against Infinity Broadcasting 

Corporation, (Infinity, a unit of Viacom, Inc.) involving ‘‘The Howard Stern Show,’’ but the forfeitures were never actually recorded 

because the company entered into a settlement agreement instead 

for more than $1.7 million. 

Recently, the Commission has imposed the statutory maximum fine of $27,500 in numerous instances. 

• In April 2003, the FCC proposed the statutory maximum fine of $27,500 against Infinity for the broadcast of explicit and 

graphic sexual references, including references to anal and oral 

sex, as well as explicit and graphic references to sexual practices that involve excretory activities. In addition, the FCC 

stated that given the egregiousness of this violation, additional 

serious violations by Infinity might lead to the initiation of a 

license revocation proceeding. While Infinity challenged the 

proposed fine, the FCC rejected this challenge and issued a forfeiture order on December 8, 2003. 

• In October 2003, Infinity was fined $357,500 for airing a 

description of a couple allegedly having sex in St. Patrick’s Cathedral in New York City. The broadcast was part of a contest 

among five couples who were challenged by station personnel 

to have sex in several places specified by the station, including 

St. Patrick’s Cathedral. The FCC said the forfeiture was the 

largest amount permitted by the Act based on the legal facts 

of the case, and therefore fined the thirteen Infinity stations 

that aired the program $27,500 each. 

• In October 2003, the FCC issued a $55,000 forfeiture 

against AM/FM Radio Licensees, which is controlled by Clear 

Channel Communications, Inc. (Clear Channel), for airing a 

program in which the hosts questioned two high school girls 

about the sex lives of students and school administrators. 

• In January 2004, the FCC issued its largest forfeiture ever 

for $755,000 against Clear Channel for airing indecent material in connection with the ‘‘Bubba the Love Sponge’’ program. 

The forfeiture assessed the statutory maximum of $27,500 to 

each of the 26 Clear Channel stations that aired the indecent 

material, and the base amount of $10,000 each for four public 

file violations ($40,000). 

• During the 2004 Super Bowl, Janet Jackson’s breast was 

exposed during her halftime duet with Justin Timberlake. 

Viacom’s CBS television network, which aired the show, and 

Viacom’s MTV, which produced the halftime show, apologized 

for what they describe as an ‘‘unscripted moment.’’ CBS estiVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
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3 Notice of Apparent Liability for Forfeiture Clear Channel Broadcasting Licenses, Inc., Separate Statement of Commissioner Michael J. Copps, Dissenting, 19 FCC Rcd 1768, (rel. Jan. 27, 

2004). 4See H. Res. 482 and H. Res. 500, and S. Res. 283 (2003). 

mates that some 140 million Americans tuned into the game, 

which would make it the most-watched Super Bowl in history. 

FCC Chairman Michael C. Powell issued a statement the following morning, calling the incident a ‘‘classless, crass and deplorable stunt’’ and instructed the Commission to open an immediate investigation on its own motion. The FCC has received 

more than 500,000 complaints about the Super Bowl halftime 

show. Chairman Powell’s probe could result in fines against 

CBS’s 20 owned and operated stations and the more than 200 

affiliate stations that aired the broadcast. If the Commission 

levies the maximum $27,500 fine, CBS affiliates would have to 

pay $5.5 million, about the cost of two Super Bowl ads, while 

CBS, through its owned stations, would be fined approximately 

$550,000. 

Even with the FCC’s recent actions on indecency, many critics 

have suggested that the fines are merely the ‘‘cost of doing business’’ for these large companies. Commissioner Michael J. Copps 

has declared in a recent statement: 

. . . a mere $27,500 fine for each incident . . . such a fine 

will be easily absorbed as a ‘‘cost of doing business’’ and 

fails to send a message that the Commission is serious 

about enforcing the nation’s indecency laws. ‘‘Cost of doing 

business’’ fines are never going to stop the media’s slide to 

the bottom.3

The following chart compares the Commission’s current fines to 

the various companies’ revenues. 

Station owner 

2002: Amount of 

fines (number of 

fines) 

Company revenue 

for 2002 

2003: Amount of 

fines (number of 

fines) 

Company revenues 

for 2003 

Clear Channel ................................................ $0 $8,093,000,000 $1,057,500 $8,042,000,000 

Infinity ............................................................ 21,000 24,600,000,000 412,500 26,600,000,000 

Entercom ........................................................ 14,000 391,300,000 0 401,100,000 

Emmis ............................................................ 28,000 533,800,000 0 N/A 

While the FCC has moved to assess the maximum fine in certain 

cases, the Commission has not utilized its authority to issue fines 

for violations on a per utterance basis, to initiate license revocations, or to further develop a consistent and aggressive approach to 

combating indecency. In October, the FCC’s Enforcement Bureau 

determined that rock star Bono’s use of the ‘‘F’’ word on a live national broadcast was not indecent because it did not appeal to the 

‘‘prurient interest’’ since the term was used as an adjective. Shortly 

thereafter, the House of Representatives and Senate both passed 

forth resolutions expressing a sense that there is no support for, 

‘‘the lowering of standards or weakening of rules by the FCC prohibiting obscene and indecent broadcasts to allow network or other 

communications to use language that is indecent or vulgar’’ and requested that the FCC Commissioners reverse the Enforcement Bureau’s decision.4 On March, 3, 2004, the FCC reversed the EnforceVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
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5 Complaints of various broadcast licensee r.e. airing of ‘‘Golden Globe Awards’’ Program, 

Memorandum Opinion and Order, FCC 04-43. 6 See www.consumerunion.org/pub/core—telecom—and—utilities/000901.html 

ment Bureau’s decision stating that any use of the ‘‘F’’ word violates the FCC’s indecency rules.5

C. POSSIBLE RELATIONSHIP TO MEDIA OWNERSHIP

The number of indecency complaints has risen during a period 

when the number of owners of media outlets has decreased. As a 

result, the Committee has become concerned that there may be a 

possible connection between the increased consolidation of owners 

in the media industry and the increased number of complaints on 

indecent programming. For example, Clear Channel, which was assessed the largest fine ever issued by the FCC, went from owning 

512 stations in 1999 to over 1,200 stations in 2004. Other radio station group owners also have increased their ownership holdings 

over the same period. Infinity went from owning 163 stations in 

1999 to owning 180 in 2004; Citadel went from 108 stations in 

1999 to 213 stations in 2004; Cummlus Media, Inc. went from owning 232 in 1999 to 301 in 2004; and Entercom Communications 

Corporation went from owning 42 in 1999 to 104 in 2004. 

Consumers Union and PTC have testified before the Committee 

on the relationship between increased media consolidation and a 

coarsening of content on the airwaves. Gene Kimmelman of Consumers Union wrote to the Committee in a letter dated March 8, 

2004, ‘‘Realistic media ownership rules must be in place to lessen 

the influence of massive corporations on local broadcast content, as 

well as to ensure public debate in the local media, including newspapers.’’ 6 At a July 23, 2003, hearing, Brent Bozell of PTC testified, ‘‘There are many reasons not to give these six mega-corporations even more control of our airwaves, one of them being their 

utter lack of attentiveness to community standards.’’

II. VIOLENT PROGRAMMING ON TELEVISION 

A. IMPACT OF MEDIA VIOLENCE ON CHILDREN

The impact of media violence on children has been studied since 

motion pictures were created during the 1920s. The primary concern at that time was whether certain scenes containing sexual or 

violent content undermined moral standards. A few years later, a 

study suggested that there was a link between delinquency-prone 

youngsters and motion pictures. Although members of the broadcast industry and specialists in human deviant behavior criticized 

these conclusions, it elevated the issue to one of public importance. 

As television grew in the 1950s, it became the primary focus of 

media violence researchers. Between the late 1950s and early 

1960s, several studies suggested a strong link between television 

violence and youth aggression. In 1969, the Surgeon General was 

petitioned by Senator John Pastore, the Chairman of the Senate 

Committee on Commerce, to conduct a study on television and social behavior. The study, published in 1972, found that: (1) television content is heavily saturated with violence; (2) children and 

adults are watching more television; and (3) there is some evidence 

that, on balance, viewing violent television entertainment increases 

the likelihood of aggressive behavior. 

7 

7 National Institute of Mental Health, Television and Behavior: Ten Years of Scientific 

Progress and Implications for the Eighties (David Pearl et al. eds., 1982) p.6. 

The Surgeon General’s report heightened concern over the issue 

and led to more studies, including a study released in 1975 by the 

Journal of American Medical Association (JAMA). The study suggested that television violence was having a deforming effect on 

children, resulting in abnormal child development, and increasing 

levels of physical aggressiveness. In response, the America Medical 

Association (AMA) passed a resolution declaring that television violence threatened the welfare of young Americans. 

Since the release of the Surgeon General’s report and the JAMA 

study, a number of major medical and public health organizations 

have studied and affirmed the link between violent programming 

and violent behavior in children. In 1982, the National Institute of 

Mental Health (NIMH) produced a report entitled ‘‘Television and 

Behavior: Ten Years of Scientific Progress and Implications for the 

Eighties,’’ concluding that TV violence affects all children, not just 

those predisposed to aggression. Specifically, the report reaffirmed 

the conclusions of earlier studies: 

After 10 more years of research, the consensus among 

most of the research community is that violence on television does lead to aggressive behavior by children and 

teenagers who watch the programs. This conclusion is 

based on laboratory experiments and on field studies. Not 

all children become aggressive, of course, but the correlations between violence and aggression are positive. In 

magnitude, television violence is as strongly correlated 

with aggressive behavior as any other behavioral variable 

that has been measured. The research question has moved 

from asking whether or not there is an effect to seeking 

explanations for the effect.7

In 1992, Dr. Brandon Centerwall, a Professor of Epidemiology at 

the University of Washington, conducted a study on the homicide 

rates in South Africa, Canada, and the United States in relation 

to the introduction of television. In all three countries, Dr. 

Centerwall found that the homicide rate doubled about 10 or 15 

years after the introduction of television. According to Dr. 

Centerwall, the lag time in each country reflects the fact that television exerts its behavior-modifying effects primarily on children, 

whereas violent activity is primarily an adult activity. Dr. 

Centerwall concludes that ‘‘long-term childhood exposure to television is a causal factor behind approximately one-half of the homicides committed in the United States.’’ This report found that extensive exposure to television violence could lead to chronic effects 

extending into later adolescence and adulthood. 

In June 2000, representatives from 6 of the nation’s top public 

health organizations, including the Academy of Pediatrics, the 

APA, and the AMA, issued a joint statement noting that: 

Well over 1,000 studies—including reports from the Surgeon General’s office, the National Institute of Mental 

Health, and numerous studies conducted by leading figures within our medical and public health organizations—

our own members—point overwhelmingly to a causal conVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
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8See L/ Rowell Huesmann et al., Longitudinal Relations Between Children’s Exposure to TV 

Violence and Their Aggressive and Violent Behavior in Young Adulthood: 1977–1992, Development Psychology, 39 (2003): 201–221. 9See L. Rowell Huesmann et al., Stability of Aggression Over Time and Generations, Developmental Psychology 20 (1984): 1,120–1,134. 

nection between media violence and aggressive behavior in 

some children. The conclusion of the public health community, based on over 30 years of research, is that viewing 

entertainment violence can lead to increases in aggressive 

attitudes, values and behavior, particularly in children. Its 

effects are measurable and long lasting. Moreover, prolonged viewing of media violence can lead to emotional desensitization toward violence in real life. 

This conclusion has been further supported by subsequent research. In March 2003, Dr. Rowell Huesmann and Dr. Leonard 

Eron reviewed the long-term relationship between viewing media 

violence in childhood and young-adult aggressive behavior. The 

doctors found that ‘‘both males and females from all social strata 

and all levels of initial aggressiveness are placed at increased risk 

for the development of adult aggressive and violent behavior when 

they viewed a high and steady diet of violent television shows in 

early childhood.’’ 8 This longitudinal study was started in the 1960s 

and followed a group of 875 children in upstate New York, examining them at ages 8, 19, and 30.9

Finally, in March 2003, the Committee heard testimony from Dr. 

Michael Rich, Director of the Center on Media and Children’s 

Health at the Children’s Hospital of Boston, concerning 

neurobiological research and the impact of media violence on children. At that hearing, Dr. Rich testified that the correlation between violent media and aggressive behavior: 

. . . is stronger than that of calcium intake and bone 

mass, lead ingestion and lower IQ, condom non-use and 

sexually acquired HIV, and environmental tobacco smoke 

and lung cancer, all associations that clinicians accept as 

fact, and on which preventive medicine is based without 

question. 

Given this evidence about the correlation between exposure to 

violent programming and violent behavior, many organizations 

have become increasingly alarmed by the increased prevalence of 

violent programming on broadcast, cable, and satellite television. 

As noted earlier, the APA estimates that a typical child will watch 

8,000 murders and 100,000 acts of violence before finishing elementary school. Similarly, in 1998, a $3.5 million study, commissioned 

by the National Cable Television Association (NCTA) and conducted by a panel of leading educators and social scientists (The 

National Television Violence Report) indicated that from 1994 to 

1997 the level of television violence was relatively constant, with 

about 60 percent of programming containing violent content, averaging about 6 violent acts per hour. During prime time viewing 

hours, however, the study found that the number of programs with 

violence increased by 14 percent on the Big Four networks, by 7 

percent on independent broadcast stations, and by 10 percent on 

basic cable channels. 

9 

10See U.S. National Commission on the Causes and Prevention of Violence, Final Report of 

the National Commission on the Causes and Prevention of Violence, Washington, D.C., U.S. Government Printing Office, December 1969, p. 199. 

Moreover, the manner in which violence is portrayed on television may be a cause for concern. For example, the NCTA study 

reported that: 

Much of TV violence is still glamorized . . . Most violence on television continues to be sanitized . . . Less than 

20 percent of violent programs portray the long-term damage of violence to the victim’s family, friends, and community . . . Much of the serious physical aggression on television is still trivialized . . . Very few programs emphasize 

an anti-violence theme. 

In 2003, the PTC conducted a study on television violence that 

was published in a report entitled, ‘‘TV Bloodbath: Violence on 

Prime Time Broadcast TV’’, which surveyed programming shown 

during the 1998, 2000, and 2002 November sweeps. The report 

found that the prevalence of violent programming increased in 

every time slot between 1998 and 2002, and that in 2002 depictions 

of violence were 41 percent more frequent during the 8 p.m. hour 

and 134.4 percent more frequent during the 9 p.m. hour than in 

1998. 

B. PRIOR CONGRESSIONAL ACTION

Congress has expressed concern about the amount of violence on 

television since the 1950s. Studies conducted in the 1950s showed 

that violent crime increased significantly early in that decade, and 

some researchers believed that the spread of television was partly 

to blame. In response, Congress held hearings concerning violence 

in radio and television and its impact on children in 1952 and 

1954. In 1956, one of the first studies of television violence reported 

that 4 year-olds who watched the ‘‘Woody Woodpecker’’ cartoon 

were more likely to display aggressive behavior than children who 

watched the ‘‘Little Red Hen.’’ After the broadcast industry pledged 

to regulate itself and after the FCC testified against regulatory action, Congress chose not to act. 

In the early 1960s, as a follow up to the earlier Senate hearings, 

President John F. Kennedy and Attorney General Robert Kennedy 

placed significant pressure on the television networks to reduce violent content in their programming. However, the pressure yielded 

few results. The urban riots of the 1960s again raised concern 

about the link between television violence and violent behavior. In 

response to public concern, President Lyndon B. Johnson established the National Commission on the Causes and Prevention of 

Violence. The Commission’s Mass Media Task Force looked at the 

impact of violence on television and concluded that television violence (1) has a negative impact on behavior; (2) encourages subsequent violent behavior; and (3) ‘‘fosters moral and social values 

about violence in daily life which are unacceptable in a civilized society.’’ 10

In 1969, Senator John Pastore petitioned the Surgeon General to 

investigate the effects of TV violence. In 1972, Surgeon General 

Jessie Steinfeld released a study demonstrating a correlation between television violence and violent and aggressive behavior and 

10 

11See U.S. Department of Health, Education, and Welfare, The Surgeon General’s Scientific 

Advisory Committee on Television and Social Behavior, Television and Growing Up: The Impact 

of Televised Violence. Report to the Surgeon General, Washington, D.C., United States Government Printing Office, 1972, p. 279. 

called for congressional action.11 The 5 volume report concluded 

that there is a causal relationship between TV violence and aggressive behavior, but primarily on children presupposed to aggressive 

behavior. 

Several more hearings were held after the release of the Surgeon 

General’s report in the 1970s. In 1975, a report by the JAMA suggested that television violence was having a deforming effect on 

children, resulting in abnormal child development, and increasing 

levels of physical aggressiveness. In response, the AMA passed a 

resolution declaring television violence to be a threat to the welfare 

of young Americans. Despite the findings, little regulatory or congressional action was taken. However, continued concerns prompted Congress to request the FCC to study possible solutions. 

On February 20, 1975, the FCC issued its ‘‘Report on the Broadcast of Violent and Obscene Material.’’ The report recommended 

statutory clarification regarding the Commission’s authority to prohibit certain broadcasts of obscene and indecent materials. However, with regard to the issue of television violence, the FCC did 

not recommend any congressional action because the industry had 

recently adopted a voluntary family viewing policy as part of a industry code of conduct. The policy provided that ‘‘entertainment 

programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately 

preceding hour.’’ In 1982, the Department of Justice challenged the 

code on antitrust grounds wholly unrelated to the family viewing 

policy. The National Association of Broadcasters (NAB) ultimately 

eliminated code and with it went the family viewing policy. 

During the 101st Congress, Senator Paul Simon (D—IL) introduced the Television Program Improvement Act. That legislation 

granted an antitrust exemption to permit television industry representatives to meet, consider, and jointly agree upon implementing voluntary standards that would lead to a reduction in television violence. Subsequent to the bill’s enactment, industry discussions led to the release in December 1992 of joint standards regarding the broadcasting of excessive television violence. In June 1993, 

the networks adopted a policy to warn viewers about programs that 

might contain excessive violence. That policy required the following 

statement to be transmitted before and during the broadcasting of 

violent programs: ‘‘Due to some violent content, parental discretion 

is advised.’’

Despite these efforts by the industry, many in Congress believed 

the voluntary standards did not adequately address the concerns 

over television violence. In October 1993, the Committee held a 

hearing on television violence to consider a variety of legislative 

proposals. Attorney General Janet Reno testified that all the legislation pending before the Committee at that time, including S. 

1383 (103rd Congress), the Children’s Protection From Violent Programming Act of 1993 (Hollings-Inouye), would be constitutional. 

The major broadcast networks and other industry representatives 

argued that the amount of violent programming had declined and 

11 

requested more time to implement proposed warning labels before 

Congress considered legislation. No further action was taken in the 

103rd Congress. 

On July 11, 1995, the Committee held a hearing on television violence to consider pending measures, including S. 470 (104th Congress), introduced by Senator Hollings and known as the ‘‘safe harbor legislation’’. S. 470 was identical to S. 1383. The Committee 

subsequently reported S. 470 without amendment on August 10, 

1995 by a recorded vote of 16 to 1, with two Senators not voting. 

Similar legislation was reported out of Committee in the 105th 

Congress by a vote of 19 to 1 and in the 106th Congress by a vote 

of 17 to 1, with one Senator voting present. 

As discussed earlier, part of the 1996 Act, Congress adopted legislation which required television manufacturers to include a device, dubbed the V-Chip for violence, capable of blocking programming with certain ratings. In conjunction with the V-Chip, the 

1996 Act encouraged the video programming industry to ‘‘establish 

voluntary rules for rating video programming that contains sexual, 

violent, or other indecent material about which parents should be 

informed before it is displayed to children,’’ and to broadcast voluntarily signals containing these ratings. 

On February 29, 1996, all segments of the television industry 

created the ‘‘TV Ratings Implementation Group’’ headed by Motion 

Picture Association of America (MPAA) President Jack Valenti. The 

group submitted its voluntary age-based ratings proposal to the 

FCC on January 17, 1997. The Implementation Group included the 

following industry groups: members from the broadcast networks; 

affiliated, independent, and public television stations; cable programmers; producers and distributors of cable programming; entertainment companies; movie studios; and members of the guilds representing writers, directors, producers, and actors. 

These age-based ratings came under intense and immediate criticism because they failed to identify specific content that was violent, sexual in nature, or contained mature dialogue. Thus, the ratings denied parents the ability to block individual programs based 

on objections to the specific content of the programs. In response 

to these criticisms, most of the television industry agreed to a ‘‘revised ratings system’’ which added designators indicating whether 

a program received a particular rating because of sex (S), violence 

(V), language (L), or suggestive dialogue (D). A designator for fantasy violence (FV) was added for children’s programming in the TVY7 category. This revised ratings system was approved by an FCC 

order on March 12, 1998. In that same order, the FCC required 

manufacturers to include V-Chip technology to block objectionable 

programming in at least half of televisions 13 inches or larger by 

July 1, 1999, and in the remaining half by January 1, 2000. 

In 1998, the Kaiser Family Foundation released a report (‘‘An 

Assessment of the Television Industry’s Use of V-Chip Ratings’’) 

identifying two major implementation problems with the ratings 

system: (1) program producers or the networks were making the 

decisions on what ratings to use, and (2) NBC and Black Entertainment Television (BET) were not providing V-Chip compatible content ratings. Specifically, the report found that 79 percent of shows 

containing violence did not receive a ‘‘V’’ content descriptor. According to the Kaiser study, ‘‘the bottom line for parents who want to 

12 

12Kaiser Family Foundation, How Parents feel (and what they know) about tv, the v-chip, and 

the tv ratings system, (1999). 13Kaiser Family Foundation, Parents and the V-Chip 2001: A Kaiser Family Foundations Survey, (2001). 

14Testimony of Attorney General Janet Reno, Hearing on S. 1383, the Children’s Protection 

from Violent Programming Act of 1993, et al., before the Senate Committee on Commerce, 

Science, and Transportation, October 20, 1993, p. 30, 42. 

use the V-Chip ratings to guide their children’s viewing is clear: 

Parents cannot rely on the content descriptors, as currently employed, to block all shows containing adult language, violence or 

sexual content.’’ In addition, with respect to children’s programming, the failure to use the ‘‘V’’ descriptor and the rare use of the 

‘‘FV’’ descriptor led the report to conclude that ‘‘there is no effective 

way for parents to block out all children’s shows containing violence.’’

In addition to concerns about the application of the ratings system, national surveys conducted by the Kaiser Family Foundation 

after the ratings system was implemented show that an overwhelming majority of parents do not know the meaning of the content ratings. For example, a survey conducted by the Kaiser Family 

Foundation in 1999 found that only 3 percent of parents knew that 

the rating ‘‘FV’’ stood for ‘‘fantasy violence’’ and 2 percent knew 

that ‘‘D’’ stood for ‘‘suggestive dialog.’’ 12 An update released in 

2001 showed that 14 percent of parents knew the meaning of ‘‘FV’’

and 5 percent knew the meaning of ‘‘D.’’ 13

Finally, in March 2004, the Ad Council released the result of its 

nationwide survey of parents with children aged 2 to 17, which 

found that while most parents are concerned about age-appropriate 

television content, less than 10 percent of all parents are using the 

V-Chip. Furthermore, the survey found that approximately 80 percent of parents that own a television set with a V-Chip are unaware that their television has the technology. 

(C) SAFE HARBOR REGULATION

Some have questioned whether limiting the distribution of violent programming to certain hours of the day would be consistent 

with the First Amendment of the Constitution. Attorney General 

Janet Reno responded to some of these questions when she testified 

in October 1993 that the safe harbor approach in S. 1383 and the 

other bills before the Committee at that time were constitutional.14

While no court has ruled specifically on the constitutionality of 

the approach taken by title II of S. 2056, there appear to be many 

lines of decisions that would support the constitutionality of the 

safe harbor approach to television violence. This legislation could 

fall within the ambit of the clear and present danger exception, the 

limitations on commercial speech and speech harmful to children, 

the strict scrutiny test, and a regulation of time, place, and manner. The following discussion focuses on the recent opinions concerning broadcast indecency and the strict scrutiny test as examples of the lines of analysis that appear to support the constitutionality of the safe harbor approach. This discussion is not exhaustive, and there may well be arguments to justify the legislation 

which do not appear below. 

13 

15 58 F. 3rd 654 (D.C. Cir. 1995) 16 Congress had already prohibited obscene and indecent broadcasts many years earlier. Section 1464 of title 18, United States Code, prohibits the broadcast of any obscene, indecent, or 

profane language by means of radio communication. This language was enacted first in the 

Radio Act of 1927, again as part of section 326 of the Communications Act of 1934, and was 

moved into title 18 in 1948. 17 While the court upheld the safe harbor approach implemented by the Byrd amendment, 

it found that the different treatment of certain public broadcast stations was unjustified. The 

court thus directed the FCC to modify its rules to apply a consistent safe harbor of 6 a.m. to 

10 p.m. for all broadcast stations. 18The court found it unnecessary to address the FCC’s contention that there is also a compelling governmental interest in protecting the home against intrusion by offensive broadcasts. 

ACT IV, 660-661. 19 Ibid. 20 Ibid. 21 Ibid. 

(1) SAFE HARBOR UNDER AN ACT IV CASE ANALYSIS 

The Court of Appeals decision in ACT IV 15 to uphold the safe 

harbor for broadcast indecency provides, perhaps, the best indication that the courts would uphold the safe harbor approach for television violence. 

In 1992, Congress enacted legislation sponsored by Senator Robert Byrd to prohibit the broadcast of indecent programming during 

certain hours of the day. The Byrd amendment allowed indecent 

broadcasts between the hours of midnight and 6 a.m.; except for 

public broadcast stations that would go off the air at midnight or 

before were permitted to air indecent broadcasts as early as 10 

p.m.16

On June 30, 1995, the United States Court of Appeals for the 

District of Columbia, sitting en banc, upheld the constitutionality 

of the Byrd amendment in ACT IV. The court found, in a seven to 

four opinion, that the safe harbor approach, also called ‘‘channeling,’’ satisfied the two-part ‘‘strict scrutiny’’ test.17

The court found that the government met the first prong of the 

test by establishing that the government had a ‘‘compelling governmental interest’’ in protecting children from the harm caused by indecency. The court found two compelling governmental interests, 

and left open the possibility of a third.18 First, the court found that ‘‘the Government has a compelling interest in supporting parental 

supervision of what children see and hear on the public airwaves.’’ 19 The court cited Ginsberg v. New York, 390 U.S. 629, 638, 

for the proposition that government has a ‘‘fundamental interest in 

helping parents exercise their ‘primary responsibility for [their] 

children’s well-being’ with ‘laws designed to aid [in the] discharge 

of that responsibility.’’ 20 Second, the court found that ‘‘the Government’s own interest in the well-being of minors provides an independent justification for the regulation of broadcast indecency.’’ It 

quoted the Supreme Court again in New York v. Ferber, 458 U.S. 

747, 756–57 (1982) for the proposition that ‘‘. . . a State’s interest 

in safeguarding the physical and psychological well-being of a 

minor is compelling. A democratic society rests, for its continuance, 

upon the healthy, well-rounded growth of young people into full 

maturity as citizens. Accordingly, we have sustained legislation 

aimed at protecting the physical and emotional well-being of youth 

even when the laws have operated in the sensitive area of constitutionally protected rights.’’ 21

The court found that the legislation met the second prong of the 

test because it uses the ‘‘least restrictive means’’ to accomplish that 

governmental interest. Here, the court noted that, in choosing the 

14 

22 Ibid., 665. 23 Ibid., 666. 24 Ibid., 667. 

hours during which indecency would be banned, the government 

must balance the interests of protecting children with the interests 

of adults. ‘‘The question, then, is what period will serve the compelling governmental interests without unduly infringing on the adult 

population’s right to see and hear indecent material.’’ 22

After reviewing the evidence compiled by the FCC, the court 

upheld the determination that a ban on indecent programming during the hours of 6:00 a.m. to 10:00 p.m. satisfied the balance and 

was the least restrictive means. The court noted that, to the extent 

that such a ban affected the rights of adults to hear such programming, ‘‘adults have alternative means of satisfying their interest in 

indecent material at other hours in ways that pose no risk to minors [such as renting videotapes, computer services, audio tapes, 

etc.].’’ 23 The court stated further that, ‘‘[a]lthough the restrictions 

burden the rights of many adults, it seems entirely appropriate 

that the marginal convenience of some adults be made to yield to 

the imperative needs of the young.’’ 24

The reasoning of the court in ACT IV appears to apply equally 

to title II of S. 2056. As with indecency, the government has a compelling interest in protecting the moral and psychological wellbeing of children against the harm of viewing television violence. 

Also as with indecency, restricting television violence to certain 

hours of the day balances the rights of adults to watch violent programming with the interests of protecting children. Adults have 

other ways of obtaining access to violent programming just as they 

have other ways of obtaining indecent materials. Thus, the decision 

upholding the safe harbor for indecency appears to provide strong 

support for finding a safe harbor for violence to be constitutional. 

(2) THE STRICT SCRUTINY TEST 

The strict scrutiny test, which was used in the ACT IV case, is 

the most stringent test used to analyze the constitutionality of a 

First Amendment challenge. The following discussion assesses the 

violence safe harbor approach under strict scrutiny, not because it 

is certain that this test will apply, but because, if the violence safe 

harbor approach passes the strict scrutiny test, it certainly would 

pass any lesser standard of review. Regulation will pass the strict 

scrutiny test if the regulation is narrowly tailored to meet a compelling governmental interest. 

Congress has developed a long and detailed record to justify the 

violence safe harbor approach. Congress has held hearings to explore various approaches to television violence in every decade 

since the 1950s. The Senate Committee on Commerce, Science, and 

Transportation alone has held 25 hearings over the past 3 decades 

on this topic, including at least 5 hearings specifically on the safe 

harbor approach. The Committee has laid extensive groundwork for 

considering the least restrictive means of protecting children from 

violence on television. By contrast, the Byrd amendment, the legislation at issue in the ACT IV case, was adopted on the Senate floor 

without any Committee hearings. 

15 

25 Among these are studies conducted by the American Medical Association, the American Psychological Association, the National Institute of Mental Health, the Center for Disease Control, 

and numerous studies by individual researchers. 26Written Testimony of Dr. Leonard Eron, Professor of Psychology and Senior Research Scientist, Institute for Social Research, University of Michigan, before the Senate Committee on 

Commerce, Science, and Transportation, Communications Subcommittee, May 18, 1999. 

(a) Compelling Governmental Interest 

The government has several compelling interests in protecting children from the harmful effects of viewing violence 

which are discussed below: an interest in protecting children 

from harm, an interest in protecting society in general, an interest in helping parents raise their children, and an interest 

in the privacy of the home. Each of these are discussed below. 

Harm to Children 

Government has a compelling interest in protecting children 

from the harm caused by television violence. As several witnesses have testified before the Committee and numerous studies have concluded, children’s viewing of violence on television 

encourages violent and anti-social behavior, either as children 

or later as adults. These studies have demonstrated a causal 

connection between viewing violence and violent behavior.25

These studies have included field studies of the effect of television on persons in real life and laboratory studies. While the 

study in 1972 by the Surgeon General concluded that there 

was a causal relationship between viewing violence and behavior primarily among those children predisposed to violence, 

more recent research by NIMH and others demonstrates that 

violent television programming affects almost all children. 

Over 35 years of laboratory and real-life studies provide evidence that televised violence is a cause of aggression among 

children, both contemporaneously, and over time. Television violence affects youngsters of all ages, both genders, at all socioeconomic levels, and at all levels of intelligence. The effect is 

not limited to children who are already disposed to being aggressive, and it is not restricted to the United States.26 While 

it is perhaps axiomatic that children who become violent because of television suffer harm, it is worth noting that such 

children suffer harm in many ways. For example, children exposed to excessive violence can become anti-social, distant from 

others, and unproductive members of society, especially if their 

actions arouse fear in other people. They can suffer from imprisonment or other forms of criminal punishment if their violence leads to illegal behavior. Violent behavior may not be the 

only harm caused by viewing violent television. According to 

the APA, viewing violence can cause fearfulness, desensitization, or an increased appetite for more violence. 

Harm of Society 

A related compelling governmental interest is the need to 

protect society as a whole from the harmful results of television-induced violent behavior. A child who views excessive 

amounts of television violence is not the only person who suffers harm. In his testimony in 1999, Dr. Eron testified that violent programming can adversely affect society because children 

who watch excessive amounts of television when they are 

young are more ‘‘prone to be convicted for more serious crimes 

16 

27Written Testimony of Dr. Eron before the Senate Committee on Commerce, Science, and 

Transportation Communications Subcommittee, July 12, 1995, p. 2. Dr. Eron further warns that 

‘‘. . . like secondary smoke effects, . . . don’t think that just because you have protected your 

child from the effects of television violence that your child is not affected. You and your child 

might be the victims of violence perpetrated by someone who as a youngster, did learn the motivation for and the techniques of violence from television.’’ Ibid. 28 Ginsberg v. New York, 390 U.S. 629, 639 (1968). 29FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978). 30Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). 

by age 30; more aggressive while under the influence of alcohol; and, harsher in the punishment they administered to their 

own children.’’ 27

Helping Parents Supervise Their Children 

In addition to the governmental interests in protecting children and society from harm, the courts have also recognized a 

compelling governmental interest in helping parents supervise 

what their children watch on television. In Ginsberg, the Supreme Court upheld a New York statute making it illegal to 

sell obscene material to children. The Court noted that it was 

proper for legislation to help parents exercise their ‘‘primary 

responsibility for [their] children’s well-being with laws designed to aid [in the] discharge of that responsibility.’’ 28

Privacy of the Home 

The government’s interest in protecting the privacy of the 

home from intrusion by violent programming may provide another compelling governmental interest. The Supreme Court 

has recognized that ‘‘in the privacy of the home . . . the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.’’ 29 The right to privacy in one’s 

home was recently used to uphold legislation limiting persons 

from making automated telephone calls to residences and 

small businesses.30 Just as subscribers to telephones do not 

give permission to telemarketers to place automated telephone 

calls, the ownership of a television does not give programmers 

permission to broadcast material that is an intrusion into the 

privacy of the home. 

(b) The Least Restrictive Means 

Opponents of the legislation argue that the safe harbor approach to television violence is not the least restrictive means 

of accomplishing the goals of reducing children’s exposure to 

television violence. Some in the broadcast industry argue that 

the industry should be trusted to regulate itself. Parents 

should bear the primary responsibility for protecting their children, according to some observers. Others say that the warnings and advisories that many programmers now add to certain shows are a lesser restrictive means of protecting children. 

In addition, opponents of legislation assert that the V-chip and 

the television ratings system provide a less restrictive means 

of protecting children. 

In United States v. Playboy, 329 U.S. 803 (2000), the Supreme Court invalidated a provision in the 1996 Act that required cable operators to either scramble sexually explicit 

channels in full, or limit programming on such channels to 

hours when children are not likely to be watching. The Court 

held that the provision was a content based restriction. The 

17 

31Testimony of Gael T. Davis, President, East Side Section, National Council of Negro 

Women, Hearing on S. 1383, the Children’s Protection from Violent Programming Act of 1993, 

et al. before the Senate Committee on Commerce, Science, and Transportation, October 20, 

1993. 32Testimony of William Abbott, President, Foundation to Improve Television, before the Committee on Commerce, Science, and Transportation, Hearing on Television Violence, July 12, 

1995. 33Sable Communications of California., Inc v. FCC, 492 U.S. 115, 126 (1989). 

Court further held that the requirements of the provision were 

not the least restrictive means of achieving the government’s 

goal. The Court found that another provision in the 1996 Act, 

that required cable operators to fully block any channel upon 

request by a subscriber provided a less restrictive alternative. 

The Court added that even if this option was not widely used 

by cable subscribers, the government bears the burden of proving that the available alternative is not effective. Title II of S. 

2056 is crafted in part to respond to Playboy. The FCC is only 

directed to implement a safe harbor for violence after it determines that the V-chip and ratings system are ineffective alternative means of protecting children from television violence. 

Prior to reaching such a determination, the FCC is directed to 

prohibit violent programming that is not electronically 

blockable, i.e., that is not encoded specifically with a rating for 

violent content. 

While the Committee cannot predict the outcome of the 

FCC’s analysis of the effectiveness of the V-chip and the ratings system, the Committee does note that parental supervision alone may not sufficiently protect children from violence 

on television. For example, the problem of children’s exposure 

to violence on television is especially acute for residents of 

inner city neighborhoods. According to Gael Davis of the National Council of Negro Women, ‘‘Violence is the No. 1 cause 

of death in the African-American community. . . . [I]n south 

central [Los Angeles], . . . [t]he environment is permeated 

with violence. It is unsafe for children to walk to and from 

school. We have 80 percent latch-key children, where there will 

be no parent in the home during the afterschool hours when 

they are viewing the television. The television has truly become our electronic babysitter.’’ 31

Many children do not have the benefit of parents willing and 

able to monitor the television programming they watch. According to William Abbott of the Foundation to Improve Television, ‘‘millions of children watch television unsupervised, onefourth of our children have but a single parent (the latch-key 

kids).’’ 32

* * * * * 

Under the ‘‘strict scrutiny’’ test, a regulation that limits freedom of speech based on the content must use ‘‘the least restrictive means to further the articulated interest.’’ 33 As the following discussion demonstrates, in the absence of an effective 

V-chip and content based ratings system, the safe harbor approach is the only approach that has a significant chance of 

furthering the compelling governmental interest in protecting 

American children from the impact of television violence. 

18 

34S. Robert Lichter, Linda S. Lichter, and Stanley Rothman, Prime Time: How TV portrays 

American Culture, (Regnery Publishing, Inc., Washington, D.C., 1994), p. 275. 35Quoted in Eric Barnouw, The Image Empire, p. 23. 

Industry Self-Regulation 

The television industry has been directed to improve its programming by Congress for over 40 years. The first congressional hearings on television violence were held in 1952. Hearings were held in the Senate in 1954 and again in the 1960s, 

1970s, 1980s, 1990s, and again, three times since 2000. At 

many of these hearings, representatives of the television industry testified that they were committed to ensuring that their 

programming was safe and appropriate for children. In 1972, 

the Surgeon General called for Congressional action, but this 

call was ignored after the broadcast industry reached an agreement with the FCC to restrict violent programs and programs 

unsuitable for children during the family hour. There is substantial evidence, however, that despite the promises of the television industry, the amount of violence on television is far 

greater than the amount of violence in society and continues 

to increase. According to one study, ‘‘[s]ince 1955, television 

characters have been murdered at a rate one thousand times 

higher than real-world victims. Indeed, television violence has 

far outstripped reality since the 1950s.’’ 34 The incentives of the 

television industry to air violent programming are best illustrated by a quote from a memo giving directions to the writers 

of the program ‘‘Man Against Crime’’ on CBS in 1953: ‘‘It has 

been found that we retain audience interest best when our stories are concerned with murder. Therefore, although other 

crimes may be introduced, somebody must be murdered, preferably early, with the threat of more violence to come.’’ 35

In December 1992, the 4 broadcast networks released a common code of standards that many criticized for being weaker 

than the networks’ own code of practices. In any case, the code 

appears to have had little effect on the amount of violence on 

television. 

Recent efforts by the broadcast and cable industries to educate parents about the V-chip and channel blocking can be 

viewed as another effort to avoid regulation without affecting 

the amount of violent programming to which children are exposed. 

Warning Labels 

Some observers argue that a requirement to put warnings or 

parental advisories before certain violent programs would be a 

less restrictive means of satisfying the Government’s interest 

in protecting children. The Committee has received no evidence, however, that such warnings accomplish the purpose of 

protecting children. Despite the industry’s efforts to air such 

advisories on their own initiative, the National Parent-Teacher’s Association and the Foundation to Improve Television support a safe harbor approach. Indeed, there is some reason to 

believe that advisories may increase the amount of violence on 

television, as some observers believe that programmers may 

19 

36For example, Ms. Lindsay Wagner, a television actress, testified in 1993 that film makers 

sometimes lobby to get an R rating. ‘‘We now have a couple of generations that have been reared 

on violence for fun and many flock to the films with warnings.’’ Testimony of Ms. Lindsay Wagner, Hearing on S. 1383, the Children’s Protection from Violent Programming Act of 1993, before 

the Senate Committee on Commerce, Science, and Transportation. 

want a warning label to be placed on a program in order to attract viewers.36

Therefore, without parental supervision, such warning labels 

may have the opposite effect of increasing the number of children who watch violent programming. In addition, warnings 

that appear once at the very beginning of a program may not 

be seen by a viewer who does not see the beginning of a program. Furthermore, it is difficult to believe that such warnings 

would be effective in the age of channel surfing. 

Parental Responsibility and Control Technologies 

Some observers believe that parents should bear the primary 

responsibility for protecting their children from violent programming, and that a variety of technologies are now available 

to assist parents in controlling the programs that their children watch. For several reasons, these approaches do not appear to be effective. 

Even when parents are available and concerned about the 

television programs that their children watch, they may not be 

able to monitor their children’s television viewing habits at all 

times. According to one survey, 66 percent of homes have three 

or more television sets, and 54 percent of children have a TV 

set in their own bedrooms. Children often watch television unsupervised. In fact, 55 percent of children usually watch television alone or with friends, but not with their families. 

The implementation of the safe harbor approach is contingent upon the FCC finding that the content based ratings system, when used in conjunction with the V-chip, provides an ineffective means of protecting children from television violence. 

If the FCC makes such a determination, it is unlikely that 

other technology-based solutions will more appropriately address the issue of children and television violence. In addition, 

technology-based solutions may require parents to spend 

money to purchase the new technologies. Development of such 

technologies are also uncertain. There are also questions about 

the ability of parents to program the technologies effectively. 

In many households, the children often are more comfortable 

with the technologies than the parents. 

(3) DEFINITION OF VIOLENT VIDEO PROGRAMMING 

Title II of S. 2056 adopts the same approach toward violent video 

programming as Congress has previously adopted for indecency. 

Section 1464 of title 18 prohibits the broadcast of indecency but 

does not contain a definition of the term. In 1975, the FCC adopted 

a definition of indecency that the courts have upheld. While it may 

be difficult to craft a definition of violent video programming, that 

is not overbroad, that is not vague, and that is consistent with the 

research of harm caused to children, these are exactly the tasks 

that the FCC was created to perform. The FCC can hold its own 

hearings, seek comment from the industry and the public, and review the research in detail in order develop a definition that satisfies constitutional scrutiny. 

20 

37 968 F.2d 684 (8th Cir. 1992). 38 866 S.W.2d 250 (1993). 39 Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969). 40The court in ACT IV states, ‘‘[W]e apply strict scrutiny to regulations of this kind [concerning indecency] regardless of the medium affected by them. . . .’’ ACT IV, at 660. 41 Ibid., 659–660. 42 Ibid., 660. 

Some observers cite the case of Video Software Dealers Association v. Webster to support the position that legislation to restrict 

violent video material is unconstitutional.37 That case, however, 

concerned a statute that neither contained a definition of violent 

video material nor delegated the definition to an expert regulatory 

agency. Title II of S. 2056, by contrast, does not take effect until 

the FCC issues a definition of violent video programming. In DavisKidd Books v. McWherter, the court overturned a statute that contained a definition that was overly vague.38 While this case demonstrates the difficulty of defining violent video programming, it 

does not stand for the proposition that such term is incapable of 

being defined. 

(4) APPLICABILITY TO MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTION SERVICES 

Some question the constitutionality of restricting violence on 

multichannel video programming distribution (MVPD) services, including cable and direct broadcasting satellite (DBS), noting that 

Red Lion,39 Pacifica, and the ACT cases pertain only to broadcasting, not to cable or any other form of media. However, the 

strict scrutiny test applies to any content regulation, not just those 

imposed on broadcast stations. Court cases indicate that a restriction on violent video programming could, potentially, be imposed on 

any media if it satisfies the strict scrutiny test.40 The court’s rationale for subjecting broadcasting to a more restrictive treatment 

includes, the scarcity of broadcast frequencies, the pervasive presence of broadcast, and accessibility of broadcast to children. In recognizing the special status of broadcasting, the Supreme Court, in 

the National Broadcasting Co. and Red Lion cases, concluded that 

due to spectrum scarcity, broadcast frequencies are not available to 

all who wish to use them. The Supreme Court in ACT IV, addressed the pervasive presence of broadcast and its accessibility to 

children. The Court stated, ‘‘the broadcast media have established 

a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the 

home, . . . Second, broadcasting is uniquely accessible to children 

. . . The ease with which children may obtain access to broadcast 

material, . . . amply justifies special treatment of indecent broadcasting.41 The ACT IV court further noted that ‘‘broadcast audiences have no choice but to ‘subscribe’ to the entire output of traditional broadcasters.’’ 42

Just as with broadcast television, MVPD services have grown to 

have a uniquely pervasive presence in the lives of all Americans 

and are uniquely accessible to children. Over 85 percent of households now receive some form of MVPD service, with 90 percent of 

such households choosing expanded basic offerings. From the perspective of the viewer, and especially children, there is little if any 

distinction between broadcast programs and expanded basic programs that are carried on a MVPD system. 

21 

43Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996). 44Playboy Entertainment Group v. United States, 945 F. Supp. 722 (1996). 45Pacifica, 438 U.S. at 750–51. 

Two recent Supreme Court cases indicate that it is permissible 

to regulate pay-TV platforms. The Supreme Court, in Denver Area 

Educational Telecommunications Consortium, Inc. v. FCC,43 addressed the constitutionality of section 10 of the Cable Television 

Consumer Protection and Competition Act of 1992. Although the 

Court struck certain provisions of section 10, it held that section 

10(a), which permits cable operators to decide whether or not to 

broadcast indecent programs on leased access channels, is consistent with the First Amendment. 

In Playboy, the Supreme Court addressed the constitutionality of 

section 505 of the 1996 Act. While the court struck down the provisions in question, it did so on the grounds that it was not the least 

restrictive alternative, not because Congress cannot regulate content on cable. 

In fact, the District Court opinion in Playboy stated that, ‘‘. . . cable television is a means of communication which is pervasive 

and . . . [t]he Supreme Court has recognized that cable television 

is as accessible to children as over-the-air broadcasting, if not more 

so.’’ 44 Moreover, the Supreme Court in its consideration of freedom 

of speech under the First Amendment has recognized the need to 

protect children from sexually explicit material, particularly in the 

context of a pervasive medium.45

Title II of S. 2056 is not intended to apply to premium or payper-view channels in recognition of the fact that parents have the 

choice to subscribe to these channels on an individual basis. This 

distinction between premium channels and pay-per-view programs, 

on the one hand, and basic or expanded basic packages of cable or 

DBS programs, on the other, demonstrates the Committee’s attempt to balance the rights of children and the legitimate rights of 

parents to watch the programs that they want to watch. In this 

way, the legislation avoids unnecessarily interfering with parents’

First Amendment rights in order to meet the least restrictive 

means test. 

LEGISLATIVE HISTORY

Senators Brownback (for himself, Mr. Allen, and Mr. L. Graham) 

introduced S. 2056 on February 9, 2004. The Committee held a 

hearing on indecent and violent programming and its effect on children on February 11, 2004 where all five FCC Commissioners testified. 

On March 9, 2004, the Committee held an executive session at 

which S. 2056 was considered. The bill was approved unanimously 

by voice vote and was ordered reported with amendments. The 

Committee first approved a perfecting amendment by Senators 

McCain and Brownback that would impose a per-utterance penalty; 

require the FCC to consider a number of factors when assessing a 

fine; create a cap on the total amount a broadcast licensee may be 

fined during a 24-hour period; establish deadlines for the FCC to 

act on indecency complaints; and compel the FCC to report to Congress annually about its indecency enforcement activities. The perfecting amendment was modified by a second-degree amendment 

22 

46Testimony of Kevin Saunders, J.D., Ph.D. before the Senate Committee on Commerce, 

Science, and Transportation, February 27, 1997. p. 17 and 7. 

by Senator Stevens that would create an escalating fine structure; 

double the cap on fines if the FCC finds certain aggravating factors 

present; and require the FCC to commence a license revocation proceeding against any licensee that has paid, or been ordered by a 

court to pay, fines arising from three indecency violations during 

its license term. Additionally, the Committee approved an amendment offered by Senator Stevens that would eliminate any restrictions on broadcasters or associations representing broadcasters 

from instituting a voluntary industry code of conduct governing a 

family viewing policy. The Committee also approved an amendment 

by Senators Stevens and Allen that would ‘‘streamline’’ the process 

for imposing financial penalties against non-licensees who violate 

18 U.S.C. 1464, and increase the cap on fines against non-licensee 

violators. An amendment by Senators Dorgan, Lott, Snowe, and 

Cantwell was approved that would require the relationship between media consolidation and indecent broadcasts to be studied by 

the General Accounting Office (GAO) and would suspend the FCC’s 

June 2, 2003, media ownership rules while the GAO conducts its 

study. 

The Committee also approved an amendment by Senators Hollings and Stevens that would require the FCC to study the effectiveness of the V-Chip and prohibit the distribution of violent video 

programming during the hours when children are reasonably likely 

to comprise a substantial portion of the audience, if the V-chip is 

determined to be ineffective. 

The amendment is substantially similar to legislation previously 

reported favorably by the Committee. In October, 1993, the Committee held a hearing on television violence to consider a variety 

of legislative proposals. Attorney General Janet Reno testified that 

the legislation pending before the Committee, including S. 1383, 

the Hollings-Inouye legislation establishing a safe harbor for violent programming, would be constitutional. 

On July 11, 1995, the Committee held its second hearing on television violence to consider pending measures, including S. 470, the 

Hollings safe harbor legislation. S. 470 (104th Congress) is identical to S. 1383 (103rd Congress). The Committee subsequently reported S. 470, as introduced, on August 10, 1995, by a recorded 

vote of 16 to 1, with two Senators not voting. No further action was 

taken during the 104th Congress. 

On February 26, 1997, Senator Hollings with Senators Inouye 

and Dorgan as co-sponsors, introduced S. 363. S. 363 was similar 

to S. 470 but allowed the Commission to implement a safe harbor 

if it did not implement a content-based ratings system. On February 27, 1997, the Committee held another hearing on television 

violence in which S. 363 was addressed. Groups such as the APA 

expressed their disapproval of the current age based rating system 

proposed by the industry and noted their preference for a contentbased ratings system. Kevin Saunders, Professor of Law at the 

University of Oklahoma, testified that violent programming could 

arguably be considered obscene or indecent and the safe harbor approach is constitutional.46 On May 1, 1997, the Committee reported 

23 

S. 363 with one amendment to add findings by a recorded vote of 

19 to 1. 

On April 26, 1999, Senator Hollings introduced S. 876, safe harbor legislation that was substantially similar to S. 470 and S. 1383. 

The bill was co-sponsored by Senators Byrd, Durbin, and Inouye. 

On May 13, 1999, the Committee held its third hearing on television violence and safe harbor legislation. Senator Hollings’ bill, S. 

876 was discussed at length, and testimony was offered as to the 

constitutionality of the measure as well as the adverse harm to 

children affected by exposure to violence on television. On September 20, 2000, the Committee reported S. 876, as amended, by 

a recorded vote of 17 to 1, with one Senator voting present. 

On April 10, 2003, the Committee held its fourth hearing on the 

impact of violent material on children. Specifically, the witnesses 

testified on neurobiological research in the field of brain mapping 

and conclusions reached on the impact of media violence on children. On February 1, 2004, the Committee held its fifth hearing on 

television violence. Senator Hollings safe harbor legislation, S. 161, 

which was incorporated with minor changes as an amendment into 

S. 2056, was discussed by the five FCC Commissioners. 

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: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, April 2, 2004. 

Hon. JOHN MCCAIN, 

Chairman, Committee on Commerce, Science and Transportation, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2056, the Broadcast Decency 

Enforcement Act of 2004. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Melissa E. Zimmerman (for federal costs), Sarah Puro (for the impact on state and 

local governments), and Jean Talarico (for the impact on the private sector). 

Sincerely, 

ELIZABETH ROBINSON

(For Douglas Holtz-Eakin, Director). 

Enclosure. 

S. 2056—Broadcast Decency Enforcement Act of 2004 

Summary: S. 2056 would increase the maximum civil penalty for 

broadcasting obscene, indecent, or profane material. (Such penalties are recorded in the federal budget as revenues.) The bill also 

would change current law and existing regulations concerning violent programming and ownership of multiple media outlets. Under 

the bill, CBO estimates that revenues resulting from those penalties would increase by less than $250,000 in 2004 and by about 

24 

$2 million over the 2005–2009 period. CBO estimates that implementing S. 2056 would increase spending subject to appropriation 

by less than $500,000 in 2004 and about $1 million over the 2005–

2009 period. The bill would not affect direct spending. 

S. 2056 contains an intergovernmental mandate as defined by 

the Unfunded Mandates Reform Act (UMRA), but CBO estimates 

that the resulting costs would not be significant and would not exceed the threshold established in UMRA ($60 million in 2004, adjusted annually for inflation). 

S. 2056 would impose private-sector mandates as defined in 

UMRA on the owners of television networks, broadcast stations, 

cable operators, and providers of satellite broadcast service. CBO 

cannot determine whether the total cost to the private sector would 

exceed the threshold for private-sector mandates established by 

UMRA ($120 million in 2004, adjusted annually for inflation). We 

do not have any basis for predicting what regulations the FCC 

would issue regarding violent video programming, the distributors’

response to those regulations, or the viewers’ and advertisers’ response to those changes. 

Estimated cost to the Federal Government: S. 2056 would increase the monetary penalties assessed by the Federal Communications Commission (FCC) for broadcasting obscene, indecent, or profane material. For broadcast licensees, the maximum penalty for 

each violation would increase from about $25,000 to $275,000 for 

the first violation, $375,000 for the second violation, and $500,000 

for the third violation. If the FCC determines that a violation is aggravating in nature, those fines would double. The maximum fine 

would be $3 million for violations occurring within a 24-hour period. The maximum penalty for individuals would increase from 

about $10,000 to $500,000. According to the FCC, prior assessments for each violation have been around $50,000 per year recently—however, annual collections have varied widely. For example, the FCC did not collect any penalties for indecency violations 

in 2003 but has collected $800,000 during the first five months of 

fiscal year 2004. 

CBO estimates that under S. 2056, collections of penalties for 

broadcasting obscene, indecent, or profane material would increase 

by less than $250,000 in 2004 and on average less than $500,000 

per year over the 2005–2009 period. The increase in collections 

could be much higher or lower considering that the number of penalties varies widely from year to year. 

S. 2056 also would void regulations issued by the FCC on June 

2, 2003, pertaining to the ownership of television stations, radio 

stations, and newspapers. That provision would reinstate the regulations concerning ownership of multiple media outlets that were 

in effect before that date. Finally, S. 2056 would require the FCC 

to issue regulations regarding a ban on violent programming during times when children are likely to be in the audience and conduct an annual report on the effectiveness of the current ratings 

system and the ‘‘V-Chip’’ technology that electronically blocks violent programming. Based on information provided by the FCC, 

CBO estimates that those tasks would increase spending subject to 

appropriation by less than $500,000 in 2004 and by about $1 million over the 2005–2009 period. 

25 

Estimated impact on state, local, and tribal governments: Section 

715 contains an intergovernmental mandate as defined by UMRA 

because it would prohibit the transmission to the public of certain 

violent programs unless those programs can be blocked by electronic means during hours when children are likely to comprise a 

substantial portion of the audience. To comply with this mandate, 

distributors, including public broadcasters, would be required either to reschedule or to not transmit certain violent programs that 

do not include a code allowing them to be blocked electronically. 

According to the Corporation for Public Broadcasting, all Public 

Broadcasting Station programs are so encoded; therefore, CBO estimates that the associated costs of the mandate would be minimal 

and would not exceed the threshold established in UMRA ($60 million in 2004, adjusted annually for inflation). 

Although the provisions in title I of the bill do not constitute a 

mandate as defined by UMRA, to the extent that public broadcasters would be affected by the increased penalties for indecency, 

they would incur additional costs. However, CBO estimates that 

those additional costs, if any, would be minimal because complaints 

regarding indecency against publicly owned broadcasting outlets 

are rare. 

Estimated impact on the private sector: S. 2056 would impose 

private-sector mandates as defined in UMRA on the owners of television networks, broadcast stations, cable operators, and providers 

of satellite broadcast service. CBO cannot determine whether the 

total cost to the private sector would exceed the threshold for private-sector mandates established by UMRA ($120 million in 2004, 

adjusted annually for inflation). We do not have any basis for predicting what regulations the FCC would issue regarding violent 

video programming, the distributors’ response to those regulations, 

or the viewers’ and advertisers’ response to those changes. 

Broadcast Media Ownership Rules 

Under the Consolidated Appropriations Act of 2004 enacted January 23, 2004, a broadcast network can own and operate local 

broadcast stations that reach up to 39 percent of households nationwide. S. 2056 would reinstate the FCC’s ownership rules that 

were in effect on June 1, 2003. This reinstatement would require 

owners of commercial television broadcast stations that have a national audience reach exceeding 35 percent to divest itself of such 

licenses as may be necessary to come into compliance with that 

limitation. 

According to the FCC, two companies would exceed the cap—

Viacom Inc. (the owner of CBS) and News Corps. (the owner of 

Fox). Based on information from government and industry sources, 

CBO estimates that Viacom Inc. and News Corps. would likely be 

able to sell their stations at a fair market value. Therefore, the cost 

of this mandate would be only the transaction costs involved in the 

sale. 

Children’s Protection From Violent Programing 

The bill would impose a private-sector mandate by prohibiting 

the distribution to the public of certain violent programs unless 

they can be blocked by electronic means during hours when children are reasonably likely to comprise a substantial portion of the 

26 

audience. The mandate would affect television networks, broadcast 

stations, cable operators, and providers of satellite broadcast services. Certain satellite and cable premium and pay-per-view programs would be exempt, and the FCC could exempt other programs, such as news and sports. 

To comply with the mandate, the distributors would be required 

to either code programs or reschedule or not transmit certain violent programs that do not include a code, allowing them to be 

blocked electronically. Information from the FCC and industry representatives indicates that most programs currently include coding 

that allows them to be blocked electronically. Thus, the mandate 

would effectively require changes to only a small number of programs. 

The cost to encode a program is not high, therefore, the greatest 

potential cost to the private sector would be any loss of new revenues associated with changes in the scheduling or nontransmission 

of those violent programs that are not encoded. 

The bill also would require that the FCC assess the effectiveness 

of electronic blocking and rating system on the protection of children from violent programming. If the FCC determines that those 

measures are not effective, the FCC would be required to complete 

a rulemaking that would prohibit the distribution of violent video 

programming during the hours when children are reasonably likely 

to comprise a substantial portion of the audience. Such a ruling by 

the FCC would impose a private-sector mandate on the distributors 

of violent programs. 

CBO cannot estimate the cost of those mandates. We do not have 

any basis for predicting the FCC’s decision regarding the effectiveness of electronic blocking and ratings on the protection of children 

from violent programing, the details of the regulations the FCC 

would issue, the distributors’ response to those regulations, or the 

viewers’ and advertisers’ response to those changes. 

Previous CBO estimate: On March 8, 2004, CBO transmitted a 

cost estimate for H.R. 3717, the Broadcast Decency Enforcement 

Act of 2004, as ordered reported by the House Committee on Energy and Commerce on March 3, 2004. Both bills would impose a 

similar increase on monetary penalties assessed by the FCC for 

broadcasting obscene, indecent, or profane material, and therefore, 

would have the same effect on revenues. 

S. 2056 differs from H.R. 3717 because the Senate bill contains 

a provision that would prohibit the transmission to the public of 

certain programs unless blocked by electronic coding. That provision is a mandate as defined by UMRA, while H.R. 3717 contains 

no new mandates. 

Estimate prepared by: Federal Costs: Melissa E. Zimmerman; 

Impact on State, Local, and Tribal Governments: Sarah Puro; and 

Impact on the Private Sector: Jean Talarico. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

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: 

27 

S. 2056 would increase the forfeiture amount for violators of 18 

U.S.C. 1464 as well as make other changes to the Act. The number 

of persons covered by the Act would not expand as broadcasters, 

multichannel video programming distributors, and certain nonbroadcast licensees are already covered by the Act. The bill, however, would expand the scope of regulated conduct by these persons. Specifically, broadcasters and multichannel video program 

distributors could face new prohibitions on distributing violent 

video programming, and would be subject to fines under section 

502 of the Act for distribution of violent video programming not 

blockable by electronic means. 

ECONOMIC IMPACT

Although the legislation may have an adverse economic impact 

on those who violate 18 U.S.C. 1464, this impact will assist the 

FCC in better enforcing the prohibition on broadcasting indecent, 

profane, or obscene material. Moreover, the legislation would impact television networks, broadcast stations, and cable programmers insofar as these entities would now be required to determine 

when to air certain programming if they do not currently offer content-specific ratings for violent programming. However, if networks 

and broadcasters pass on content-specific ratings to cable and satellite providers, the law will have no adverse economic impact. The 

networks and broadcast stations already have standards and practices departments that review all programs for their content. The 

legislation would require only these reviewers to add an analysis 

of the violent content to the analyses that they currently conduct. 

PRIVACY

S. 2056 is not expected to have an adverse effect on the personal 

privacy of any individuals that will be impacted by this legislation. 

PAPERWORK

S. 2056 would have a minimal impact on current paperwork levels. 

SECTION-BY-SECTION ANALYSIS

TITLE I—BROADCAST DECENCY 

Section 101. Short Title. 

This section would provide that the legislation may be cited as 

the ‘‘Broadcast Decency Enforcement Act of 2004.’’

Section 102. Increase in Penalties for Obscene, Indecent, and Profane Broadcasts. 

This section would increase the cap on fines for violations of 18 

U.S.C. 1464. The maximum fines would increase from $27,500 to 

$275,000 for the first violation, $375,000 for the second violation, 

and $500,000 for the third and any subsequent violation. A ‘‘violation’’ shall be any individual utterance or showing of indecent material. For example, within one radio program, a broadcast licensee 

may be fined $500,000 for the third time an indecent word is uttered during that program. However, this section establishes a cap 

of $3 million dollars for the amount that may be assessed against 

28 

a licensee or permittee in any given 24 hours. This section does not 

require the FCC to assess the maximum for any violation. The FCC 

would retain the latitude to determine an appropriate fine up to 

the maximum, except that it would be required to consider the violator’s ability to pay when assessing a fine and the size of the markets in which the station is located, in addition to those factors set 

forth in section 503(b)(2)(D). 

This section also mandates commencement of a license revocation 

proceeding by the FCC against any licensee that repeatedly violates 18 U.S.C. 1464 during the term of its license. If 3 times during the term of a license, a licensee pays a fine for the broadcast 

of obscene, indecent, or profane material or a court of competent jurisdiction orders the licensee to pay such a fine, then the FCC shall 

commence a proceeding under section 312 of the Act to revoke that 

station’s license. This section does not prevent the FCC from commencing a license revocation proceeding against any licensee who 

violates 18 U.S.C. 1464 at any time even after a single indecency 

violation, and even if the licensee has never paid a fine for such 

a violation. 

Section 103. Additional Factors in Indecency Penalties; Exception. 

This section lists additional factors the FCC should take into consideration when assessing the degree of culpability of the violator. 

The factors that may be considered by the FCC to either enhance 

or mitigate penalties include: (1) whether the material was live or 

recorded, scripted or unscripted; (2) whether the licensee had a reasonable opportunity to review the programming or had reason to 

believe it may contain obscene, indecent, or profane material; (3) 

whether the violator used a time delay blocking mechanism in originating live or unscripted programming; (4) the size of the viewing 

or listening audience; (5) the size of the market; and (6) whether 

the material was aired during a children’s television program, or 

television programs rated for general audience viewing, or aired on 

radio when the audience is likely to include children. 

This section also allows the FCC to double fines, and doubles the 

total cap on fines, if the Commission determines certain aggravating factors to be present, including: (1) the material was 

scripted or recorded; (2) the violator had a reasonable opportunity 

to review the script or recording, thereby demonstrating that the 

violator had knowledge that indecent, obscene, or profane material 

would be aired, or otherwise had a reasonable basis to believe that 

live or unscripted programming would contain indecent material; 

(3) the violator failed to block live or unscripted programming; (4) 

the size of the audience was substantially larger than usual, such 

as the Super Bowl, the Academy Awards or similar programs; and 

(5) the violation occurs during a children’s television program. 

Section 104. Indecency Penalties for Non-Licensees. 

This section would streamline the existing process for fining nonlicensees for violations of 18 U.S.C. 1464. This section would permit 

the FCC to fine persons who utter obscene, indecent, or profane 

material willfully or intentionally and who should have known that 

such material would be broadcast without any prior citation. It 

would also raise the limit on such a fine to $500,000 for each violaVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\SR253.XXX SR253
29 

47 Black’s Law Dictionary 1434 (5th ed., 1979) (defining ‘‘willful’’ as ‘‘intentional’’). 48 United States v. NAB, 536 F. Supp. 149 (D.D.C. 1982). 49Writers Guild of America, West, Inc. v. FCC, 423 F. Supp. 1064 (D. Ca. 1976); vacated and 

remanded to the FCC, 609 F.2d 355 (9th Cir. 1979) (holding that [t]his is a considerably more 

narrow and precise issue than is the district court’s bedrock principle and with respect to which 

the FCC’s expertise and procedures could provide enormous assistance to the judiciary’’). 

tion. A ‘‘violation’’ may be an individual utterance of indecent material. 

The Committee does not believe this section should be used to 

fine persons who had no reason to believe such an utterance or 

showing would be broadcast, or had reason to believe that it would 

be broadcast during a time when such utterances are permitted 

(e.g. 10 p.m. to 6 a.m.). Willful and intentional are similar terms 

that denote an act done knowingly, purposely and intentionally.47

If, for example, an athlete or coach in the heat of a sporting event 

(such as a baseball player being hit by a pitch) spontaneously or 

reflexively yells out an obscene, indecent, or profane utterance 

caught by a field microphone, the Committee believes that person 

would not be subject to a fine since his actions were not done purposely and intentionally. The Committee also expects the FCC to 

afford individuals the same protections as licensees when determining the degree of culpability of the non-licensee. 

Section 105. Voluntary Industry Code of Conduct Governing Family 

Television Viewing. 

The Committee encourages broadcast licensees and networks to 

develop ‘‘family viewing’’ programs for the first hour of prime time 

each night and in the immediately preceding hour when the audience may likely contain children. It is the Committee’s intention 

that such programming aired during these two hours would be 

suitable for families to view together. 

In April 1975, the NAB developed a Code of Conduct for Television, which included a family viewing policy. The policy provided 

that ‘‘entertainment programming inappropriate for viewing by a 

general family audience should not be broadcast during the first 

hour of network entertainment programming in prime time and in 

the immediately preceding hour.’’ In 1976, the family viewing policy was challenged, but ultimately the appeals court, in a jurisdictional ruling, found that the Commission and not the district court 

was the right forum to decide the case in the first instance.48 Although the decision of the Court of Appeals was jurisdictional, that 

court suggested considerable doubt about the district court’s judgment,‘‘It simply is not true that the First Amendment bars all limitations of the power of the individual licensee to determine what 

he will transmit to the listening and viewing public.’’ Additionally, 

this section would prevent the Department of Justice from precluding the broadcasters and the networks from developing a ‘‘family viewing policy’’ due to antitrust concerns.49

Section 106. Deadlines for Action on Complaints. 

This section sets firm deadlines for the FCC to respond to complaints regarding obscene, indecent, or profane material. It gives 

the FCC 270 days (approximately 9 months) to respond to any complaint received. The FCC would be required to act by issuing the 

notices to the licensee or permittee required by section 503, or by 

writing to the licensee or permittee and the complainant to inform 

30 

50 2002 Biennial Regulatory Review ‘‘Review of the Commission’s Broadcast Ownership Rules 

and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996’’, Report and Order, 18 FCC Rcd 13620 (rel. Jul. 2, 2003). 51See 47 CFR 73.3555; See also Section 202 of the Telecommunications Act of 1996, Pub. L. 

No. 104-104, 110 Stat. 56. 

the parties that the Commission has not found a violation of 18 

U.S.C. 1464. If the Commission commences an action against a licensee as a result of a complaint, this section would require it to 

complete the action within an additional 270 days. Thus, this section will require all action related to a particular indecency violation to be completed within 18 months of the violation. 

Section 107. Required Contents of Annual Reports to the Commission. 

This section would require the FCC to submit an annual report 

to Congress detailing the agency’s enforcement activities. The section includes the details that must be included in the report. 

Section 108. Media Ownership and Indecency Broadcast. 

This section would require the GAO to conduct a study to examine whether a relationship exists between the increased consolidation of owners of media companies and the increased rise in indecency complaints to the FCC. The study would be submitted to the 

Senate Committee on Commerce, Science, and Transportation and 

the House of Representatives Committee on Energy and Commerce 

within one year after the enactment of this legislation. 

Additionally, this section would suspend the FCC’s media ownership rules adopted on June 2, 2003, from taking effect by declaring 

such rules ‘‘invalid and without legal effect’’ until the completion 

and submission of the report.50 During this time, the FCC’s media 

ownership rules in place prior to June 2, 2003, would be in effect.51

Section 109. Implementation. 

This section requires the FCC to implement the sections of this 

legislation within 180 days after the date of enactment. Additionally, this section would ensure that broadcasts aired prior to the 

date of enactment would not be subject to this legislation’s increase 

fines and other provisions. Lastly, this section contains a separability clause that holds that if any provision of this bill or any provision of an amendment made to this bill, or the application thereof 

to particular persons or circumstances, is found to be unconstitutional, the remainder of this bill, or that amendment, or the application thereof to other persons or circumstances shall not be affected. 

TITLE II—CHILDREN’S PROTECTION FROM VIOLENT 

PROGRAMMING 

Sec. 201. Short Title. 

This section establishes the short title of this title of the bill, 

‘‘Children’s Protection from Violent Programming’’. 

Sec. 202. Findings. 

This section expresses the findings made by the Committee in 

support of the legislation. 

31 

Sec. 203. Assessment of Effectiveness of Current Ratings System for 

Violence and Effectiveness of V-Chip in Blocking Violent Programming. 

This section directs the Commission to assess the effectiveness of 

measures to require television broadcasters and multichannel video 

programming distributors to rate and encode programming that 

could be blocked by parents using the V-Chip undertaken under 

section 715 of the Communications Act of 1934, and subsections (w) 

and (x) of section 303 of that Act. It also requires the FCC to report 

its findings to the Senate Committee on Commerce, Science, and 

Transportation and the House of Representatives Committee on 

Energy and Commerce within 12 months of enactment, and annually thereafter. 

If the FCC finds as a result of its ongoing assessment responsibilities described above, that the measures referred to are ineffective, then the Commission shall complete a rulemaking within 270 

days after the date on which the Commission makes such a finding 

to prohibit the distribution of violent video programming during 

the hours when children are reasonably likely to comprise a substantial portion of the audience. 

Sec. 204. Unlawful Distribution of Violent Video Programming that 

Is Not Specifically Rated for Violence and Therefore Is Not 

Blockable. 

This section creates a new section 715 of the Act entitled: ‘‘Unlawful Distribution of Violent Video Programming not Specifically 

Blockable by Electronic Means’’, which makes it unlawful for any 

person to distribute to the public any violent video programming 

not blockable by electronic means specifically on the basis of its violent content during hours when children are reasonably likely to 

comprise a substantial portion of the audience. The FCC is directed 

to conduct a rulemaking and promulgate regulations to implement 

the provisions of this section within nine months of enactment. In 

that proceeding, the Commission may exempt programming that 

does not conflict with the objective of protecting children from the 

negative influences of violent video programming, as that objective 

is reflected in the findings of section 551(a) of the 1996 Act. Such 

exempt programming could include news programs and sporting 

events. 

Additionally, the FCC is directed to exempt premium and payper-view cable and direct-to-home satellite programming and to define the term ‘‘hours when children are reasonably likely to comprise a substantial portion of the audience’’ and the term ‘‘violent 

video programming’’. 

The Commission is directed to impose a forfeiture penalty of not 

more than the limits established under section 503(b) for indecency 

violations to any person who violates this section or related regulation. Each day on which such violation occurs is a separate violation. If a person repeatedly violates this section or related regulation, the FCC shall after notice and opportunity for hearing, revoke 

any license issued under this legislation. Moreover, the Commission must consider compliance with this section and related regulations when it reviews an application for renewal of a broadcast license. 

32 

Sec. 205. Federal Trade Commission Study of Marketing Strategy 

Improvements. 

This section requires the FTC to study the marketing of violent 

content by the motion picture, music recording, and computer and 

video game industries to children, including the marketing practices improvements developed and implemented by those industries. The FTC is required to report annually on its findings and 

recommendations, to the Senate Committee on Commerce, Science, 

and Transportation, and the House of Representatives Committee 

on Energy and Commerce. 

Sec. 206. Separability. 

Under this section, if any provision of this bill or any provision 

of an amendment made by this Act, or the application thereof to 

particular persons or circumstances, is found to be unconstitutional, the remainder of this bill, or that amendment, or the application thereof to other persons or circumstances shall not be affected. 

Sec. 207. Effective Date. 

The prohibition contained in section 715 of the Communications 

Act of 1934 (as added by section 2 of this Act) and the regulations 

promulgated thereunder shall take effect 1 year after the regulations are adopted by the Commission. 

ROLLCALL VOTES IN COMMITTEE

In accordance with paragraph 7(c) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following description of the record votes during its consideration of S. 2056: 

Senator Stevens offered an amendment to require the FCC to initiate mandatory license revocation proceedings against a licensee 

who has broadcast obscene, indecent, or profane language or images on three or more occasions. By a rollcall vote of 11 yeas and 

10 nays as follows, the amendment was adopted: 

YEAS—11 NAYS—10 

Mr. Stevens Ms. Snowe 

Mr. Burns Mr. Brownback 

Mr. Lott1 Mr. Fitzgerald 

Mrs. Hutchison Mr. Ensign 

Mr. Smith Mr. Allen 

Mr. Sununu Mr. Dorgan 

Mr. Hollings Mr. Wyden 

Mr. Inouye Mrs. Boxer 

Mr. Breaux Ms. Cantwell 

Mr. Nelson Mr. McCain 

Mr. Lautenberg1

1By proxy 

Senator Breaux offered an amendment to apply the penalties for 

obscene, etc., broadcasting to multichannel video programming distributors (other than with respect to pay-per-view, etc., programVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\SR253.XXX SR253
33 

ming) until the FCC determines that 85 percent of the households 

with children are using the V-chip or similar technology to block 

offensive programming or have affirmatively opted out of using it. 

By rollcall vote of 11 yeas and 12 nays as follows, the amendment 

was defeated: 

YEAS—11 NAYS—12 

Mr. Lott Mr. Stevens 

Mr. Ensign Mr. Burns 

Mr. Hollings Mrs. Hutchison 

Mr. Rockefeller1 Ms. Snowe1

Mr. Kerry1 Mr. Brownback 

Mr. Breaux Mr. Smith 

Mr. Dorgan Mr. Fitzgerald 

Mr. Wyden Mr. Allen 

Mrs. Boxer Mr. Sununu 

Mr. Nelson Mr. Inouye 

Mr. McCain Ms. Cantwell 

Mr. Lautenberg1

1By proxy 

Senator Dorgan, for himself, Senator Lott, Senator Snowe, and 

Senator Cantwell offered an amendment to increase the penalties 

for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language. By a rollcall vote of 13 yeas and 10 nays as follows, the 

amendment was adopted: 

YEAS—13 NAYS—10 

Mr. Lott Mr. Stevens 

Mrs. Hutchison1 Mr. Burns 

Ms. Snowe1 Mr. Brownback 

Mr. Hollings Mr. Smith 

Mr. Inouye Mr. Fitzgerald 

Mr. Rockefeller1 Mr. Ensign 

Mr. Kerry1 Mr. Allen 

Mr. Dorgan Mr. Sununu1

Mr. Wyden Mr. Breaux 

Mrs. Boxer Mr. McCain 

Mr. Nelson 

Ms. Cantwell 

Mr. Lautenberg1

1By proxy 

By a rollcall vote of 23 yeas and 0 nays as follows, the bill was 

ordered reported with amendments: 

YEAS—23 NAYS—0 

Mr. Stevens 

Mr. Burns 

Mr. Lott 

Mrs. Hutchison1

Ms. Snowe1

Mr. Brownback 

Mr. Smith 

Mr. Fitzgerald 

34 

Mr. Ensign 

Mr. Allen 

Mr. Sununu1

Mr. Hollings 

Mr. Inouye 

Mr. Rockefeller1

Mr. Kerry1

Mr. Breaux 

Mr. Dorgan 

Mr. Wyden 

Mrs. Boxer 

Mr. Nelson 

Ms. Cantwell1

Mr. Lautenberg1

Mr. McCain 

1By proxy 

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): 

COMMUNICATIONS ACT OF 1934 

Title III—Provisions Relating to Radio 

PART I—GENERAL PROVISIONS 

SEC. 312. ø47 U.S.C. 312¿ ADMINISTRATIVE SANCTIONS. 

(a) The Commission may revoke any station license or construction permit—

(1) for false statements knowingly made either in the application or in any statement of fact which may be required pursuant to section 308; 

(2) because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license 

or permit on an original application; 

(3) for willful or repeated failure to operate substantially as 

set forth in the license; 

(4) for willful or repeated violation of, or willful or repeated 

failure to observe any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty 

ratified by the United States; 

(5) for violation of or failure to observe any final cease and 

desist order issued by the Commission under this section; 

(6) for violation of section 1304, 1343, or 1464 of title 18 of 

the United States Code; or 

(7) for willful or repeated failure to allow reasonable access 

to or to permit purchase of reasonable amounts of time for the 

use of a broadcasting station, other than a non-commercial 

35 

educational broadcast station, by a legally qualified candidate 

for Federal elective office on behalf of his candidacy. 

(b) Where any person (1) has failed to operate substantially as 

set forth in a license, (2) has violated or failed to observe any of 

the provisions of this Act, or section 1304, 1343, or 1464 of title 18 

of the United States Code, or (3) has violated or failed to observe 

any rule or regulation of the Commission authorized by this Act or 

by a treaty ratified by the United States, the Commission may 

order such person to cease and desist from such action. 

(c) Before revoking a license or permit pursuant to subsection (a), 

or issuing a cease and desist order pursuant to subsection (b), the 

Commission shall serve upon the licensee, permittee, or person involved an order to show cause why an order of revocation or a 

cease and desist order should not be issued. Any such order to 

show cause shall contain a statement of the matters with respect 

to which the Commission is inquiring and shall call upon said licensee, permittee, or person to appear before the Commission at a 

time and place stated in the order, but in no event less than thirty 

days after the receipt of such order, and give evidence upon the 

matter specified therein; except that where safety of life or property is involved, the Commission may provide in the order for a 

shorter period. If after hearing, or a waiver thereof, the Commission determines that an order of revocation or a cease and desist 

order should issue, it shall issue such order, which shall include a 

statement of the findings of the Commission and the grounds and 

reasons therefor and specify the effective date of the order, and 

shall cause the same to be served on said licensee, permittee, or 

person. 

(d) In any case where a hearing is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the 

Commission. 

(e) The provisions of section 9(b) [5 U.S.C. 558(c)(1) and (2)] of 

the Administrative Procedure Act which apply with respect to the 

institution of any proceeding for the revocation of a license or permit shall apply also with respect to the institution, under this section, of any proceeding for the issuance of a cease and desist order. 

(f) For purposes of this section: 

(1) The term ‘‘willful’’, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any 

intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty 

ratified by the United States. 

(2) The term ‘‘repeated’’, when used with reference to the 

commission or omission of any act, means the commission or 

omission of such act more than once or, if such commission or 

omission is continuous, for more than one day. 

(g) If a broadcasting station fails to transmit broadcast signals 

for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of 

that period, notwithstanding any provision, term, or condition of 

the license to the contrary. 

(h) LICENSE REVOCATION FOR MULTIPLE VIOLATIONS OF INDECENCY PROHIBITIONS.—If, in each of 3 or more proceedings during 

36 

the term of a broadcast license for a broadcast station, a licensee is 

ordered to pay forfeitures for the broadcast of obscene, indecent, or 

profane material by either—

(1) the Commission and such forfeitures have been paid, or 

(2) a court of competent jurisdiction and such orders have become final, 

then the Commission shall commence a proceeding under subsection 

(a) with respect to that broadcast station to revoke the station license or construction permit of that licensee or permittee. 

* * * * * * * 

Title V—Penal Provisions—Forfeitures 

SEC. 503. ø47 U.S.C. 503¿ FORFEITURES IN CASES OF REBATES AND 

OFFSETS. 

(a) Any person who shall deliver messages for interstate or foreign transmission to any carrier, or for whom as sender or receiver, 

any such carrier shall transmit any interstate or foreign wire or 

radio communication, who shall knowingly by employee, agent, officer, or otherwise, directly or indirectly, by or through any means 

or device whatsoever, receive or accept from such common carrier 

any sum of money or any other valuable consideration as a rebate 

or offset against the regular charges for transmission of such messages as fixed by the schedules of charges provided for in this Act, 

shall in addition to any other penalty provided by this Act forfeit 

to the United States a sum of money three times the amount of 

money so received or accepted and three times the value of any 

other consideration so received or accepted, to be ascertained by 

the trial court; and in the trial of said action all such rebates or 

other considerations so received or accepted for a period of six 

years prior to the commencement of the action, may be included 

therein, and the amount recovered shall be three times the total 

amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be. 

(b)(1) Any person who is determined by the Commission, in accordance with paragraph (3) or (4) of this subsection, to have—

(A) willfully or repeatedly failed to comply substantially with 

the terms and conditions of any license, permit, certificate, or 

other instrument or authorization issued by the Commission; 

(B) willfully or repeatedly failed to comply with any of the 

provisions of this Act or of any rule, regulation, or order issued 

by the Commission under this Act or under any treaty, convention, or other agreement to which the United States is a party 

and which is binding upon the United States; 

(C) violated any provision of section 317(c) or 508(a) of this 

Act; or 

(D) violated any provision of section 1304, 1343, or 1464 of 

title 18, United States Code; 

shall be liable to the United States for a forfeiture penalty. A forfeiture penalty under this subsection shall be in addition to any 

other penalty provided for by this Act; except that this subsection 

shall not apply to any conduct which is subject to forfeiture under 

title II, part II or III of title III, or section 506 of this Act. 

37 

(2)(A) If the violator is (i) a broadcast station licensee or permittee, (ii) a cable television operator, or (iii) an applicant for any 

broadcast or cable television operator license, permit, certificate, or 

other instrument or authorization issued by the Commission, the 

amount of any forfeiture penalty determined under this section 

shall not exceed $25,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $250,000 for any single 

act or failure to act described in paragraph (1) of this subsection. 

(B) If the violator is a common carrier subject to the provisions 

of this Act or an applicant for any common carrier license, permit, 

certificate, or other instrument of authorization issued by the Commission, the amount of any forfeiture penalty determined under 

this subsection shall not exceed $100,000 for each violation or each 

day of a continuing violation, except that the amount assessed for 

any continuing violation shall not exceed a total of $1,000,000 for 

any single act or failure to act described in paragraph (1) of this 

subsection. 

(C) Notwithstanding subparagraph (A), if the violator is— (i)(I) a broadcast station licensee or permittee; or 

(II) an applicant for any broadcast license, permit, certificate, 

or other instrument or authorization issued by the Commission; 

and 

(ii) determined by the Commission under paragraph (1) to 

have broadcast obscene, indecent, or profane language or images, 

the amount of any forfeiture penalty determined under this subsection shall not exceed $275,000 for the first violation, $375,000 for 

the second violation, and $500,000 for the third and any subsequent 

violations, with each utterance constituting a separate violation, except that the amount assessed a licensee or permitee for any number 

of violations in a given 24-hour time period shall not exceed a total 

of $3,000,000. In determining the amount of any forfeiture penalty 

under this subparagraph, the Commission, in addition to the elements identified in subparagraph (E), shall take into account the 

violator’s ability to pay, including such factors as the revenue and 

profits of the broadcast stations that aired the obscene, indecent, or 

profane language and the size of the markets in which these stations 

are located. 

ø(C)¿ (D) In any case not covered in øsubparagraph (A) or (B),¿ 

subparagraph (A), (B), or (C), the amount of any forfeiture penalty 

determined under this subsection shall not exceed $10,000 for each 

violation or each day of a continuing violation, except that the 

amount assessed for any continuing violation shall not exceed a 

total of $75,000 for any single act or failure to act described in 

paragraph (1) of this subsection. 

ø(D)¿ (E) The amount of such forfeiture penalty shall be assessed 

by the Commission, or its designee, by written notice. In determining the amount of such a forfeiture penalty, the Commission or 

its designee shall take into account the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, 

the degree of culpability, any history of prior offenses, ability to 

pay, and such other matters as justice may require. 

(F) In the case of a violation in which the violator is determined 

by the Commission under paragraph (1) to have uttered obscene, inVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00039 Fmt 6659 Sfmt 6603 E:\HR\OC\SR253.XXX SR253
38 

decent, or profane material, the Commission shall take into account, 

in addition to the matters described in subparagraph (E), the following factors with respect to the degree of culpability of the violator: 

(i) Whether the material uttered by the violator was live or recorded, scripted or unscripted. 

(ii) Whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable 

basis to believe live or unscripted programming would contain 

obscene, indecent, or profane material. 

(iii) If the violator originated live or unscripted programming, 

whether a time delay blocking mechanism was implemented for 

the programming. 

(iv) The size of the viewing or listening audience of the programming. 

(v) The size of the market. 

(vi) Whether the violation occurred during a children’s television program (as such term is used in the Children’s Television Programming Policy referenced in section 73.4050(c) of 

the Commission’s regulations (47 C.F.R. 73.4050(c)) or during 

a television program rated TVY, TVY7, TVY7FV, or TVG under 

the TV Parental Guidelines as such ratings were approved by 

the Commission in implementation of section 551 of the Telecommunications Act of 1996, Video Programming Ratings, Report and Order, CS Docket No. 97-55, 13 F.C.C. Rcd. 8232 

(1998)), and, with respect to a radio broadcast station licensee, 

permittee, or applicant, whether the target audience was primarily comprised of, or should have reasonably been expected 

to be primarily comprised of, children. 

(G) The Commission may double the amount of any forfeiture penalty (not to exceed $550,000 for the first violation, $750,000 for 

the second violation, and $1,000,000 for the third or any subsequent 

violation not to exceed up to $3,000,000 for all violations in a 24- 

hour time period notwithstanding section 503(b)(2)(C)) if the Commission determines additional factors are present which are aggravating in nature, including—

(i) whether the material uttered by the violator was recorded 

or scripted; 

(ii) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable 

basis to believe live or unscripted programming would contain 

obscene, indecent, or profane material; 

(iii) whether the violator failed to block live or unscripted programming; 

(iv) whether the size of the viewing or listening audience of 

the programming was substantially larger than usual, such as 

a national or international championship sporting event or 

awards program; and 

(v) whether the violation occurred during a children’s television program (as defined in subparagraph (F)(vi)). 

(3)(A) At the discretion of the Commission, a forfeiture penalty 

may be determined against a person under this subsection after notice and an opportunity for a hearing before the Commission or an 

administrative law judge thereof in accordance with section 554 of 

title 5, United States Code. Any person against whom a forfeiture 

39 

penalty is determined under this paragraph may obtain review 

thereof pursuant to section 402(a). 

(B) If any person fails to pay an assessment of a forfeiture penalty determined under subparagraph (A) of this paragraph, after it 

has become a final and unappealable order or after the appropriate 

court has entered final judgment in favor of the Commission, the 

Commission shall refer the matter to the Attorney General of the 

United States, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the forfeiture 

penalty shall not be subject to review. 

(4) Except as provided in paragraph (3) of this subsection, no forfeiture penalty shall be imposed under this subsection against any 

person unless and until— (A) the Commission issues a notice of apparent liability, in 

writing, with respect to such person; 

(B) such notice has been received by such person, or until the 

Commission has sent such notice to the last known address of 

such person, by registered or certified mail; and 

(C) such person is granted an opportunity to show, in writing, within such reasonable period of time as the Commission 

prescribes by rule or regulation, why no such forfeiture penalty 

should be imposed. 

Such a notice shall (i) identify each specific provision, term, and 

condition of any Act, rule, regulation, order, treaty, convention, or 

other agreement, license, permit, certificate, instrument, or authorization which such person apparently violated or with which such 

person apparently failed to comply; (ii) set forth the nature of the 

act or omission charged against such person and the facts upon 

which such charge is based; and (iii) state the date on which such 

conduct occurred. Any forfeiture penalty determined under this 

paragraph shall be recoverable pursuant to section 504(a) of this 

Act. 

(5)(A) No forfeiture liability shall be determined under this subsection against any person, if such person does not hold a license, 

permit, certificate, or other authorization issued by the Commission, and if such person is not an applicant for a license, permit, 

certificate, or other authorization issued by the Commission, unless, prior to the notice required by paragraph (3) of this subsection 

or the notice of apparent liability required by paragraph (4) of this 

subsection, such person—

ø(A)¿ (i) is sent a citation of the violation charged; 

ø(B)¿ (ii) is given a reasonable opportunity for a personal 

interview with an official of the Commission, at the field office 

of the Commission which is nearest to such person’s place of 

residence; and 

ø(C)¿ (iii) subsequently engages in conduct of the type described in such citation. øThe provisions of this paragraph 

shall not apply, however, if the person involved is engaging in 

activities for which a license, permit, certificate, or other authorization is required, or is a cable television system operator, 

if the person involved is transmitting on frequencies assigned 

for use in a service in which individual station operation is authorized by rule pursuant to section 307(e), or in the case of 

violations of section 303(q), if the person involved is a nonVerDate mar 24 2004 05:52 Apr 06, 2004 Jkt 029010 PO 00000 Frm 00041 Fmt 6659 Sfmt 6601 E:\HR\OC\SR253.XXX SR253
40 

licensee tower owner who has previously received notice of the 

obligations imposed by section 303(q) from the Commission or 

the permittee or licensee who uses that tower.¿ 

(B) The provisions of subparagraph (A) shall not apply— (i) if the person involved is engaging in activities for which 

a license, permit, certificate, or other authorization is required 

or is a cable television system operator; 

(ii) if the person involved is transmitting on frequencies assigned for use in a service in which individual station operation 

is authorized by rule pursuant to section 307(e); 

(iii) in the case of violations of section 303(q), if the person 

involved is a nonlicensee tower owner who has previously received notice of the obligations imposed by section 303(q) from 

the Commission or the permittee or licensee who uses that 

tower; or 

(iv) in the case of a determination that a person uttered obscene, indecent, or profane material that was broadcast by a 

broadcast station license or permittee, if the person is determined to have willfully or intentionally made the utterance and 

knew or should have known that the material would be broadcast, but, notwithstanding any other provision of this section, 

any person determined by the Commission to have engaged in 

such activity shall be subject to a forfeiture penalty not to exceed $500,000 for each violation. 

(C) Whenever the requirements of this paragraph are satisfied 

with respect to a particular person, such person shall not be entitled to receive any additional citation of the violation charged, with 

respect to any conduct of the type described in the citation sent 

under this paragraph. 

(6) No forfeiture penalty shall be determined or imposed against 

any person under this subsection if— (A) such person holds a broadcast station license issued 

under title III of this Act and if the violation charged occurred—

(i) more than 1 year prior to the date of issuance of the 

required notice or notice of apparent liability; or 

(ii) prior to the date of commencement of the current 

term of such license, 

whichever is earlier; or 

(B) such person does not hold a broadcast station license 

issued under title III of this Act and if the violation charged 

occurred more than 1 year prior to the date of issuance of the 

required notice or notice of apparent liability. 

For purposes of this paragraph, ‘‘date of commencement of the current term of such license’’ means the date of commencement of the 

last term of license for which the licensee has been granted a license by the Commission. A separate license term shall not be 

deemed to have commenced as a result of continuing a license in 

effect under section 307(c) pending decision on an application for 

renewal of the license. 

(7) In the case of an allegation concerning the utterance of obscene, indecent, or profane material that is broadcast by a station 

licensee or permittee—

(A) within 270 days after the date of the receipt of such allegation, the Commission shall—

41 

(i) issue the required notice under paragraph (3) to such 

licensee or permittee or the person making such utterance; 

(ii) issue a notice of apparent liability to such licensee or 

permittee or person in accordance with paragraph (4); or 

(iii) notify such licensee, permittee, or person in writing, 

and any person submitting such allegation in writing or by 

general publication, that the Commission has determined 

not to issue either such notice; and 

(B) if the Commission issues such notice and such licensee, 

permittee, or person has not paid a penalty or entered into a 

settlement with the Commission, within 270 days after the date 

on which the notice was issued, the Commission shall—

(i) issue an order imposing a forfeiture penalty; or 

(ii) notify such licensee, permittee, or person in writing, 

and any person submitting such allegation in writing or by 

general publication, that the Commission has determined 

not to issue either such order. 

* * * * * * * 

Title VII—Miscellaneous Provisions 

SEC. 715. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO PROGRAMMING NOT SPECIFICALLY BLOCKABLE BY ELECTRONIC 

MEANS. 

(a) UNLAWFUL DISTRIBUTION.—It shall be unlawful for any person to distribute to the public any violent video programming not 

blockable by electronic means specifically on the basis of its violent 

content during hours when children are reasonably likely to comprise a substantial portion of the audience. 

(b) RULEMAKING PROCEEDING.—The Commission shall conduct a 

rulemaking proceeding to implement the provisions of this section 

and shall promulgate final regulations pursuant to that proceeding 

not later than 9 months after the date of enactment of the Children’s 

Protection from Violent Programming Act. As part of that proceeding, the Commission—

(1) may exempt from the prohibition under subsection (a) programming (including news programs and sporting events) 

whose distribution does not conflict with the objective of protecting children from the negative influences of violent video 

programming, as that objective is reflected in the findings in 

section 551(a) of the Telecommunications Act of 1996; 

(2) shall exempt premium and pay-per-view cable programming and premium and pay-per-view direct-to-home satellite 

programming; and 

(3) shall define the term ‘‘hours when children are reasonably 

likely to comprise a substantial portion of the audience’’ and the 

term ‘‘violent video programming’’. 

(c) ENFORCEMENT.— (1) FORFEITURE PENALTY.—The forfeiture penalties established by section 503(b) for violations of section 1464 of title 18, 

United States Code, shall apply to a violation of this section, or 

any regulation promulgated under it in the same manner as if 

a violation of this section, or such a regulation, were a violation 

of law subject to a forfeiture penalty under that section. 

42 

(2) LICENSE REVOCATION.—If a person repeatedly violates this 

section or any regulation promulgated under this section, the 

Commission shall, after notice and opportunity for hearing, revoke any license issued to that person under this Act. 

(3) LICENSE RENEWALS.—The Commission shall consider, 

among the elements in its review of an application for renewal 

of a license under this Act, whether the licensee has complied 

with this section and the regulations promulgated under this 

section. 

(d) DEFINITIONS.—For purposes of this section— (1) BLOCKABLE BY ELECTRONIC MEANS.—The term ‘‘blockable 

by electronic means’’ means blockable by the feature described 

in section 303(x). 

(2) DISTRIBUTE.—The term ‘‘distribute’’ means to send, transmit, retransmit, telecast, broadcast, or cablecast, including by 

wire, microwave, or satellite, but it does not include the transmission, retransmission, or receipt of any voice, data, graphics, 

or video telecommunications accessed through an interactive 

computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230(f)(2)), which is not originated or transmitted in the ordinary course of business by a television broadcast station or multichannel video programming 

distributor as defined in section 602(13) of that Act (47 U.S.C. 

522(13)). 

(3) VIOLENT VIDEO PROGRAMMING.—The term ‘‘violent video 

programming’’ as defined by the Commission may include matter that is excessive or gratuitous violence within the meaning 

of the 1992 Broadcast Standards for the Depiction of Violence 

in Television Programs, December 1992. 

Æ