109TH CONGRESS
1ST SESSION
H. R. 310
AN ACT
To increase the penalties for violations by television and
radio broadcasters of the prohibitions against trans-
mission of obscene, indecent, and profane material, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Broadcast Decency
Enforcement Act of 2005’’.
SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT,
AND PROFANE BROADCASTS.
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 fol-
lowing new subparagraph:
‘‘(C) Notwithstanding subparagraph (A), if the viola-
tor is (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 Com-
mission, and the violator is determined by the Commission
under paragraph (1) to have broadcast obscene, indecent,
or profane material, the amount of any forfeiture penalty
determined under this section shall not exceed $500,000
for each violation.’’; and
(3) in subparagraph (D), as redesignated by
paragraph (1) of this subsection—
(A) by striking ‘‘subparagraph (A) or (B)’’
and inserting ‘‘subparagraph (A), (B), or (C)’’;
and
(B) by adding at the end the following:
‘‘Notwithstanding the preceding sentence, if the
violator is determined by the Commission under
paragraph (1) to have uttered obscene, inde-
cent, or profane material (and the case is not
covered by subparagraph (A), (B), or (C)), the
amount of any forfeiture penalty determined
under this section shall not exceed $500,000 for
each violation.’’.
SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES;
EXCEPTION.
Section 503(b)(2) of the Communications Act of
1934 (47 U.S.C. 503(b)(2)) is further amended by adding
at the end (after subparagraph (E) as redesignated by sec-
tion 2(1) of this Act) the following new subparagraphs:
‘‘(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 fac-
tors:
‘‘(i) With respect to the degree of culpability of
the violator, the following:
‘‘(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 pro-
gramming or had a reasonable basis to believe
live or unscripted programming may contain ob-
scene, 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; and
‘‘(V) whether the programming was part of
a children’s television program as described in
the Commission’s children’s television program-
ming policy (47 CFR 73.4050(c)).
‘‘(ii) With respect to the violator’s ability to
pay, the following:
‘‘(I) whether the violator is a company or
individual;
‘‘(II) if the violator is a company, the size
of the company and the size of the market
served; and
‘‘(III) if the violator is an indi-
vidual, the financial impact of a for-
feiture penalty on that individual.
‘‘(G) A broadcast station licensee or permittee that
receives programming from a network organization, but
that is not owned or controlled, or under common owner-
ship or control with, such network organization, shall not
be subject to a forfeiture penalty under this subsection for
broadcasting obscene, indecent, or profane material, if—
‘‘(i) such material was within live or recorded
programming provided by the network organization
to the licensee or permittee; and
‘‘(ii)(I) the programming was recorded or
scripted, and the licensee or permittee was not given
a reasonable opportunity to review the programming
in advance; or
‘‘(II) the programming was live or unscripted,
and the licensee or permittee had no reasonable
basis to believe the programming would contain ob-
scene, indecent, or profane material.
The Commission shall by rule define the term ‘network
organization’ for purposes of this subparagraph.’’.
SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.
Section 503(b)(5) of the Communications Act of
1934 (47 U.S.C. 503(b)(5)) is amended—