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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 616 Introduced in Senate (IS)]

<DOC>

<DOC>

109th CONGRESS
  1st Session
                                 S. 616

 To inform the American public and to protect children from increasing 
depictions of indecent and gratuitous and excessive violent material on 
                  television, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 14, 2005

    Mr. Rockefeller (for himself and Mrs. Hutchison) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL

 
 To inform the American public and to protect children from increasing 
depictions of indecent and gratuitous and excessive violent material on 
                  television, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indecent and Gratuitous and 
Excessively Violent Programming Control Act of 2005''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Increasingly, parents, educators, and families are 
        concerned about the material that is broadcast on television 
        and radio, and the effect such material has on America's 
        children.
            (2) Television influences children's perception of the 
        values and behavior that are common and acceptable in society.
            (3) Broadcast television, cable television, and video 
        programming are--
                    (A) uniquely pervasive presences in the lives of 
                all American children; and
                    (B) readily accessible to all American children.
            (4) 85.1 percent of all American homes subscribe to multi-
        channel video programming.
            (5) Complaints about indecent programming have grown 
        exponentially in the last five years.
            (6) In 2004, Americans filed over 1,000,000 complaints with 
        the Federal Communications Commission about indecent 
        programming.
            (7) According to reports from the Parents Television 
        Council, indecent and violent video programming on cable 
        television is pervasive.
            (8) Studies also show that parents are increasingly 
        concerned. According to the Kaiser Family Foundation, more than 
        4 out of 5 parents are concerned that their children are being 
        exposed to too much sex on television.
            (9) Violent video programming influences children, as does, 
        indecent programming.
            (10) The American Association of Pediatrics, the American 
        Psychological Association, the American Medical Association, 
        and the U.S. Surgeon General have all documented the harm from 
        watching excessive television violence on children.
            (11) There is empirical evidence that children exposed to 
        violent video programming at a young age have a higher tendency 
        to engage in violent and aggressive behavior later in life than 
        those children not so exposed.
            (12) There is empirical evidence that children exposed to 
        violent video programming have a greater tendency to assume 
        that acts of violence are acceptable behavior and therefore to 
        imitate such behavior.
            (13) There is empirical evidence that children exposed to 
        violent video programming have an increased fear of becoming a 
        victim of violence, resulting in increased self-protective 
        behaviors and increased mistrust of others.
            (14) There is a compelling governmental interest in 
        limiting the negative influences of violent video programming 
        on children.
            (15) A significant amount of violent video programming that 
        is readily accessible to minors remains unrated specifically 
        for violence and therefore cannot be blocked solely on the 
        basis of its violent content.
            (16) Age-based ratings that do not include content rating 
        for violence do not allow parents to block programming based 
        solely on violent content thereby rendering ineffective any 
        technology-based blocking mechanism designed to limit violent 
        video programming.
            (17) Technology-based solutions, such as the V-chip, may be 
        helpful in protecting some children, but cannot achieve the 
        compelling governmental interest in protecting all children 
        from violent video programming when parents are only able to 
        block programming that has, in fact, been rated for violence.
            (18) Restricting the hours when violent video programming 
        can be shown to protect the interests of children whose parents 
        are unavailable, unable to supervise their children's viewing 
        behavior, do not have the benefit of technology-based 
        solutions, are unable to afford the costs of technology-based 
        solutions, or are unable to determine the content of those 
        shows that are only subject to age-based ratings.
            (19) After further study, pursuant to a rulemaking, the 
        Federal Communications Commission may conclude that content-
        based ratings and blocking technology do not effectively 
        protect children from the harm of violent video programming.
            (20) If the Federal Communications Commission reaches the 
        conclusion described in paragraph (19), the channeling of 
        violent video programming will be the least restrictive means 
        of limiting the exposure of children to the harmful influences 
        of violent video programming.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Communications Commission.
            (2) Multichannel video programming distributor.--The term 
        ``multichannel video programming distributor'' has the same 
        meaning given such term in section 602 of the Communications 
        Act of 1934 (47 U.S.C. 522).
            (3) Other programming service.--The term ``other 
        programming service'' has the same meaning given such term in 
        section 602 of the Communications Act of 1934 (47 U.S.C. 522).

SEC. 4. EFFECTIVENESS OF MEASURES PROTECTING CHILDREN FROM INDECENT AND 
              VIOLENT VIDEO PROGRAMMING.

    (a) Assessment.--The Commission shall assess--
            (1) the technological and practical effectiveness of 
        statutory and regulatory measures that require television 
        broadcast station licensees and multichannel video programming 
        distributors to rate and encode programming that could be 
        blocked by parents, including use of the technology required by 
        the Commission's Report and Order, ET Docket 97-206, under 
        section 303(x) of the Communications Act of 1934 (47 U.S.C. 
        303(x)), in accomplishing their intended purposes;
            (2)(A) the prevalence of violent programming on television; 
        and
            (B) the effectiveness of the current system for rating and 
        encoding violent television programming, including--
                    (i) an assessment of consumer awareness of the 
                current ratings system; and
                    (ii) an assessment of whether current ratings are 
                self-administered or performed by independent 
                organizations; and
            (3) the technological and practical effectiveness of 
        measures used by multichannel video programming distributors to 
        protect children from exposure to--
                    (A) indecent video programming; and
                    (B) gratuitous and excessively violent video 
                programming.
    (b) Reports.--Not later than 60 days after the date of enactment of 
this Act and annually thereafter, the Commission shall report its 
findings from the assessments made under subsection (a) to the 
Committee on Commerce, Science, and Transportation of the United States 
Senate and the Committee on Energy and Commerce of the United States 
House of Representatives.
    (c) Rulemaking Proceeding.--
            (1) In general.--If the Commission determines, on the basis 
        of an assessment under subsection (a), that a measure described 
        in subsection (a) is not effective in protecting children from 
        exposure to gratuitous and excessively violent video 
        programming on television broadcasts, or from exposure to 
        indecent video programming or gratuitous and excessively 
        violent video programming carried by multichannel video 
        programming distributors, then the Commission shall initiate 
        and conclude (not later than 270 days after the date of that 
        determination) a rulemaking proceeding--
                    (A) to prohibit television broadcast station 
                licensees from broadcasting gratuitous and excessively 
                violent programming during the hours when children are 
                reasonably likely to comprise a substantial portion of 
                the audience if the Commission's determination relates 
                to measures applicable to such broadcast television 
                programming; or
                    (B) to adopt measures to protect children from 
                indecent video programming, or gratuitous and 
                excessively violent video programming, as the case may 
                be, carried by multichannel video programming 
                distributors during the hours when children are 
                reasonably likely to comprise a substantial portion of 
                the audience if the Commission's determination relates 
                to measures applicable to such multichannel video 
                programming.
            (2) Exemptions.--The Commission may exempt from any 
        prohibition or measure promulgated under paragraph (1)--
                    (A) video programming the broadcast or carriage of 
                which does not conflict with the objective of 
                protecting children from access to--
                            (i) indecent programming; or
                            (ii) gratuitous and excessively violent 
                        video programming; and
                    (B) premium and pay-per-view services.
    (d) Enforcement.--The forfeiture penalties established by section 
503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) shall apply 
to a violation of any regulation promulgated under subsection (c) in 
the same manner as if it were a violation of a provision of that Act 
subject to a forfeiture penalty under section 503 of that Act.
    (e) Definitions.--In this section:
            (1) Gratuitous and excessively violent video programming.--
        The Commission shall define the term ``gratuitous and 
        excessively violent video programming'' for purposes of this 
        section. In defining it, the Commission--
                    (A) 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; and
                    (B) shall take into account the findings set forth 
                in section 551(a) of the Telecommunications Act of 1996 
                (47 U.S.C. 303 note).
            (2) Hours when children are reasonably likely to comprise a 
        substantial portion of the audience.--The Commission shall 
        define the term ``hours when children are reasonably likely to 
        comprise a substantial portion of the audience'' for purposes 
        of this section.
            (3) Indecent video programming.--The Commission shall 
        define the term ``indecent video programming'' for purposes of 
        this section.
            (4) Television broadcast station licensee.--The term 
        ``television broadcast station licensee'' means the licensee or 
        permittee of a television broadcast station licensed or 
        permitted by the Federal Communications Commission under title 
        III of the Communications Act of 1934 (47 U.S.C. 301 et seq.).

SEC. 5. IMPROVED ENFORCEMENT OF INDECENCY ON BROADCAST PROGRAMMING.

    (a) In General.--Section 503(b)(2) of the Communications Act of 
1934 (47 U.S.C. 503(b)(2)) is amended--
            (1) by redesignating subparagraphs (C) and (D) as 
        subparagraphs (D) and (E), respectively;
            (2) by inserting after subparagraph (B) the following new 
        subparagraph:
    ``(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 $500,000, 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.''; and
            (3) in subparagraph (D), as redesignated by paragraph (1), 
        by striking ``subparagraph (A) or (B)'' and inserting 
        ``subparagraph (A), (B), or (C)''.
    (b) Additional Factors in Indecency Penalties; Exception.--Section 
503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)), as 
amended by subsection (a) of this section, is amended by adding at the 
end the following:
    ``(F) In the case of a violation in which the violator is 
determined by the Commission under paragraph (1) to have uttered 
obscene, indecent, 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 reasonably have been 
        expected to be primarily comprised of, children.
    ``(G) The Commission may double the amount of any forfeiture 
penalty 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)).
    ``(H) For purposes of this section, the Commission shall have the 
authority to impose a forfeiture penalty on any broadcast station (as 
defined in section 153), network station, nationally distributed 
superstation, or television network (as those terms are defined in 
section 339).''.
    (c) Public Hearings for Violations of Indecency Prohibitions.--
Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is 
amended by adding at the end the following new subsection:
    ``(c) Public Hearings for Violations of Indecency Prohibitions.--
            ``(1) In general.--In any proceeding initiated under this 
        section in which the Commission issues a notice of apparent 
        liability, but prior to its imposition of a forfeiture penalty, 
        the Commission or designees of the Commission shall conduct 
        public hearings or forums at the discretion of the Commission 
        or its designees, at any time and place the Commission or its 
        designees is able to secure facilities and witnesses, for the 
        purpose of carrying out the duties of the Commission and to 
        ascertain the concerns and interests of the affected viewing 
        communities exposed to the broadcast.
            ``(2) Combined hearings.--If a broadcast results in the 
        initiation of multiple proceedings and the issuance of multiple 
        notices of apparent liability, but prior to the imposition of 
        multiple forfeiture penalties, the Commission or its designee 
        may combine the hearings required under paragraph (1).''.

SEC. 6. LOCAL BROADCASTING AUTHORITY TO PREEMPT PROGRAMMING.

    Part I of title III of the Communications Act of 1934 (47 U.S.C. 
301 et seq.) is amended by adding at the end the following:

``SEC. 340. LOCAL BROADCASTING AUTHORITY TO PREEMPT PROGRAMMING DEEMED 
              OBSCENE OR INDECENT.

    ``(a) Local Broadcaster Ability to Review Programming in Advance.--
A broadcast station licensee or permittee that receives programming 
from a network organization, but that is not owned or controlled, or 
under common ownership or control with, such network organization, 
shall be given reasonable opportunity to review all recorded or 
scripted programming in advance.
    ``(b) Authority to Preempt.--A broadcast station licensee or 
permittee described in subsection (a)--
            ``(1) may decide not to broadcast, or otherwise preempt, in 
        whole or in part and without penalty, any programming that it 
        reasonably believes depicts or describes--
                    ``(A) obscene, indecent, profane, or gratuitous and 
                excessively violent material; or
                    ``(B) activities that would be patently offensive 
                as measured by the community standards of the community 
                in which they operate; and
            ``(2) shall notify, in advance, the network organization of 
        any decision not to broadcast, or otherwise preempt, any 
        programming under paragraph (1).
    ``(c) Exemption From Penalty.--A broadcast station licensee or 
permittee described in subsection (a) shall not be subject to a 
forfeiture penalty under section 503(b)(2) for the broadcast of a 
program found to be in violation of section 503(b)(1), if the broadcast 
station licensee or permittee prior to such broadcast was--
            ``(1) required by a network organization to broadcast the 
        program which was recorded or scripted, regardless of such 
        broadcast station licensee or permittee's decision not to 
        broadcast, or otherwise preempt, the program under subsection 
        (b);
            ``(2) not provided a reasonable opportunity to review the 
        program; or
            ``(3) required to broadcast the program which was 
        unscripted, live, or otherwise presented without a time delay 
        blocking mechanism.
    ``(d) Limitation.--Nothing in this section shall preclude the 
imposition of a forfeiture penalty under section 503(b)(2) against a 
network organization or its owned and operated affiliate.
    ``(e) Definition.--The Commission shall by rule define the term 
`network organization' for purposes of this section.''.

SEC. 7. WARNINGS BASED ON CONTENT OF PROGRAMMING.

    Part I of title III of the Communications Act of 1934 (47 U.S.C. 
301 et seq.), as amended by section 6, is amended by adding at the end 
the following:

``SEC. 341. WARNINGS BASED ON CONTENT OF PROGRAMMING.

    ``(a) In General.--Each television and radio broadcast licensee, 
multichannel video programming distributor, or other programming 
service shall provide a warning of the specific content of each 
recorded or scripted program it broadcasts.
    ``(b) Warning Standards.--A warning provided under subsection (a) 
shall--
            ``(1) include information regarding the language content, 
        sexual content, and violence content of the program to be 
        broadcast or distributed; and
            ``(2) be broadcast or distributed so as--
                    ``(A) to appear in both visible and audible form;
                    ``(B) to appear full screen for 30 seconds at the 
                beginning of the program, and every 30 minutes 
                thereafter in the case of a program in excess of 30 
                minutes in length; and
                    ``(C) to advise viewers of their ability to block 
                any such program, including programs containing 
                gratuitous and excessively violent material, using V-
                chip technology to block display of programs with a 
                common rating required under subsection (x) of section 
                303.
    ``(c) Review.--The Commission shall, from time to time, review the 
warnings on the content of broadcast programming required under this 
section for the purpose of assuring that such warnings meet the 
requirements of this section.
    ``(d) Definitions.--As used in this section, the terms 
`multichannel video programming distributor' and `other programming 
service' have the same meaning given such terms in section 602.
    ``(e) Limitation.--Nothing in this section shall be deemed or 
construed to relieve, preclude, or obviate the application of the 
ratings standards set forth in the TV Parental Guidelines (Video 
Programming Ratings, Report and Order, CS Docket No. 97-55, 13 F.C.C. 
Rcd. 8232 (1998)) as such voluntary ratings were established by the 
National Association of Broadcasters, the National Cable Television 
Association, and the Motion Picture Association of America and approved 
by the Commission in implementation of section 551.''.

SEC. 8. ASSESSMENT OF THE EFFECTIVENESS OF VOLUNTARY RATING STANDARDS.

    The Commission shall--
            (1) assess the effectiveness of measures designed to 
        provide parents with timely information about the rating of 
        upcoming broadcast programming under the TV Parental Guidelines 
        (Video Programming Ratings, Report and Order, CS Docket No. 97-
        55, 13 F.C.C. Rcd. 8232 (1998)) as such voluntary ratings were 
        established by the National Association of Broadcasters, the 
        National Cable Television Association, and the Motion Picture 
        Association of America and approved by the Commission in 
        implementation of section 551 of the Telecommunications Act of 
        1996;
            (2) assess the technical feasibility of developing ratings 
        systems from alternative sources; and
            (3) not later than 180 days after the date of enactment of 
        this Act, report its findings based on the assessment under 
        paragraphs (1) and (2) to the Committee on Commerce, Science, 
        and Transportation of the United States Senate and the 
        Committee on Energy and Commerce of the United States House of 
        Representatives.

SEC. 9. CHILDREN'S PROGRAMMING REQUIREMENTS.

    (a) Increase in Amount of Educational and Informational Programming 
for Children.--
            (1) In general.--Not later than 180 days after the date of 
        the enactment of this Act, the Commission shall promulgate 
        regulations in accordance with section 102(a) of the Children's 
        Television Act of 1990 (47 U.S.C. 303a(a)), to require that 
        each television broadcast licensee broadcast not less than 6 
        hours of programming specifically designed to serve the 
        educational and informational needs of children during hours 
        when children are reasonably likely to comprise a substantial 
        portion of the audience.
            (2) Proportional increase for digital television 
        multicasts.--In response to the requirements of section 
        309(j)(14), the Commission shall promulgate regulations in 
        accordance with section 102(a) of the Children's Television Act 
        of 1990 (47 U.S.C. 303a(a)), to require each television 
        broadcast licensee providing digital multicasts to provide an 
        amount of time to broadcast programming specifically designed 
        to serve the educational and informational needs of children 
        during hours when children are reasonably likely to comprise a 
        substantial portion of the audience in the same ratio to its 
        total amount of time provided to such children's programming on 
        its main stream under paragraph (1) bears to the total amount 
        of time provided to all programming during the hours when 
        children are reasonably likely to comprise a substantial 
        portion of the audience.
    (b) Report.--The Commission shall amend its regulations to require 
each television broadcast licensee to file, regularly, a report on how 
it met, for the year in review, its obligations to serve the 
educational and informational needs of children in accordance with 
section 102(a) of the Children's Television Act of 1990 (47 U.S.C. 
303a(a)).
    (c) Website Requirement.--The Commission shall amend its 
regulations to require each television broadcast licensee for which 
there is a publicly accessible website on the Internet--
            (1) to make its report available to the public on that 
        website; or
            (2) to provide a hyperlink on that website to the report on 
        the Commission's website.

SEC. 10. REINSTATEMENT OF VOLUNTARY CODE OF CONDUCT.

    (a) Voluntary Industry Code of Conduct Governing Content of 
Broadcast Programming.--It is the sense of the Congress that each 
television and radio broadcast licensee, multichannel video programming 
distributor, or other programming service should reinstitute or adopt, 
as the case may be, and faithfully comply with, the provisions set 
forth in the ``Television Code of the National Association of 
Broadcasters'' as adopted on December 6, 1951, with amendments 
thereafter, by the Television Board of the National Association of 
Broadcasters, formerly known as the National Association of Radio and 
Television Broadcasters.
    (b) Antitrust Exemption.--
            (1) In general.--The antitrust laws as defined in 
        subsection (a) of the first section of the Clayton Act (15 
        U.S.C. 12) and the law of unfair competition under section 5 of 
        the Federal Trade Commission Act (15 U.S.C. 45) shall not apply 
        to any joint discussion, consideration, review, action, or 
        agreement by or among television and radio broadcast licensees, 
        multichannel video programming distributors, or other 
        programming services for the purpose of, and limited to, 
        developing and disseminating voluntary guidelines designed to 
        provide a code of conduct regarding the content of broadcast 
        programs.
            (2) Exception.--The exemption provided for in this 
        subsection shall not apply to any joint discussion, 
        consideration, review, action, or agreement which results in a 
        boycott of any person, corporation, advertiser, or industry.

SEC. 11. PREMIUM AND PAY-PER-VIEW CHANNELS EXEMPT.

    (a) In General.--Nothing in this Act shall be deemed or construed 
to apply to any premium or pay-per-view service.
    (b) Definition.--For the purpose of this section, the term 
``premium or pay-per-view service'' shall mean any video programming 
provided by a multichannel video programming distributor that is 
offered on a per channel or per program basis.
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