SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Broadcast Decency
Enforcement Act of 2004’’.
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; and
‘‘(II) if the violator is a company, the size
of the company and the size of the market
served.
‘‘(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—
(1) by redesignating subparagraphs (A), (B),
and (C) as clauses (i), (ii), and (iii), respectively;
(2) by inserting ‘‘(A)’’ after ‘‘(5)’’;
(3) by redesignating the second sentence as
subparagraph (B);
(4) in such subparagraph (B) as redesignated—
(A) by striking ‘‘The provisions of this
paragraph shall not apply, however,’’ and in-
serting ‘‘The provisions of subparagraph (A)
shall not apply (i)’’;
(B) by striking ‘‘operator, if the person’’
and inserting ‘‘operator, (ii) if the person’’;
(C) by striking ‘‘or in the case of’’ and in-
serting ‘‘(iii) in the case of’’; and
(D) by inserting after ‘‘that tower’’ the fol-
lowing: ‘‘, or (iv) in the case of a determination
that a person uttered obscene, indecent, or pro-
fane material that was broadcast by a broadcast
station licensee or permittee, if the person is
determined to have willfully or intentionally
made the utterance’’; and
(5) by redesignating the last sentence as sub-
paragraph (C).
SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.
Section 503(b) of the Communications Act of 1934
(47 U.S.C. 503(b)) is amended by adding at the end there-
of the following new paragraph:
‘‘(7) In the case of an allegation concerning the utter-
ance of obscene, indecent, or profane material that is
broadcast by a station licensee or permittee—
‘‘(A) within 180 days after the date of the re-
ceipt of such allegation, the Commission shall—
‘‘(i) issue the required notice under para-
graph (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 accord-
ance with paragraph (4); or
‘‘(iii) notify such licensee, permittee, or
person in writing, and any person submitting
such allegation in writing or by general publica-
tion, 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 Com-
mission, within 270 days after the date of the re-
ceipt of such allegation, the Commission shall—
‘‘(i) issue an order imposing a forfeiture
penalty; or
‘‘(ii) notify such licensee, permittee, or per-
son 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.’’.
SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROAD-
CAST.
Section 503 of the Communications Act of 1934 (47
U.S.C. 503) is further amended by adding at the end the
following new subsection:
‘‘(c) ADDITIONAL REMEDIES FOR INDECENT BROAD-
CASTING.—In any proceeding under this section in which
the Commission determines that any broadcast station li-
censee or permittee has broadcast obscene, indecent, or
profane material, the Commission may, in addition to im-
posing a penalty under this section, require the licensee
or permittee to broadcast public service announcements
that serve the educational and informational needs of chil-
dren. Such announcements may be required to reach an
audience that is up to 5 times the size of the audience
that is estimated to have been reached by the obscene, in-
decent, or profane material, as determined in accordance
with regulations prescribed by the Commission.’’.
SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF
INDECENCY PROHIBITIONS.
Section 503 of the Communications Act of 1934 (47
U.S.C. 503) is further amended by adding at the end
(after subsection (c) as added by section 6) the following
new subsection:
‘‘(d) CONSIDERATION
OF LICENSE DISQUALIFICA-
TION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.—
If the Commission issues a notice under paragraph (3)
or (4) of subsection (b) to a broadcast station licensee or
permittee looking toward the imposition of a forfeiture
penalty under this Act based on an allegation that the li-
censee or permittee broadcast obscene, indecent, or pro-
fane material, and either—
‘‘(1) such forfeiture penalty has been paid, or
‘‘(2) a court of competent jurisdiction has or-
dered payment of such forfeiture penalty, and such
order has become final,
then the Commission shall, in any subsequent proceeding
under section 308(b) or 310(d), take into consideration
whether the broadcast of such material demonstrates a
lack of character or other qualifications required to oper-
ate a station.’’.
SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLA-
TIONS OF INDECENCY PROHIBITIONS.
Section 309(k) of the Communications Act of 1934
(47 U.S.C. 309(k)) is amended by adding at the end the
following new paragraph:
‘‘(5) LICENSE
RENEWAL
CONSIDERATION
OF
VIOLATIONS OF INDECENCY PROHIBITIONS.—If the
Commission has issued a notice under paragraph (3)
or (4) of section 503(b) to a broadcast station li-
censee or permittee with respect to a broadcast sta-
tion looking toward the imposition of a forfeiture
penalty under this Act based on an allegation that
such broadcast station broadcast obscene, indecent,
or profane material, and—
‘‘(A) such forfeiture penalty has been paid,
or
‘‘(B) a court of competent jurisdiction has
ordered payment of such forfeiture penalty, and
such order has become final,
then such violation shall be treated as a serious vio-
lation for purposes of paragraph (1)(B) of this sub-
section with respect to the renewal of the license or
permit for such station.’’.
SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDE-
CENCY PROHIBITIONS.
Section 312 of the Communications Act of 1934 (47
U.S.C. 312) is amended by adding at the end the following
new subsection:
‘‘(h) LICENSE REVOCATION FOR VIOLATIONS OF IN-
DECENCY PROHIBITIONS.—
‘‘(1) CONSEQUENCES
OF
MULTIPLE
VIOLA-
TIONS.—If, in each of 3 or more proceedings during
the term of any broadcast license, the Commission
issues a notice under paragraph (3) or (4) of section
503(b) to a broadcast station licensee or permittee
with respect to a broadcast station looking toward
the imposition of a forfeiture penalty under this Act
based on an allegation that such broadcast station
broadcast obscene, indecent, or profane material,
and in each such proceeding either—
‘‘(A) such forfeiture penalty has been paid,
or
‘‘(B) a court of competent jurisdiction has
ordered payment of such forfeiture penalty, and
such order has become final,
then the Commission shall commence a proceeding
under subsection (a) of this section to consider
whether the Commission should revoke the station li-
cense or construction permit of that licensee or per-
mittee for such station.
‘‘(2) PRESERVATION OF AUTHORITY.—Nothing
in this subsection shall be construed to limit the au-
thority of the Commission to commence a proceeding
under subsection (a).’’.
SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF
THE COMMISSION.
Each annual report submitted by the Federal Com-
munications Commission after the date of enactment of
this Act shall, in accordance with section 4(k)(2) of the
Communications Act of 1934 (47 U.S.C. 154(k)(2)), in-
clude the following:
(1) The number of complaints received by the
Commission during the year covered by the report
alleging that a broadcast contained obscene, inde-
cent, or profane material, and the number of pro-
grams to which such complaints relate.
(2) The number of those complaints that have
been dismissed or denied by the Commission.
(3) The number of complaints that have re-
mained pending at the end of the year covered by
the annual report.
(4) The number of notices issued by the Com-
mission under paragraph (3) or (4) of section 503(b)
of the Communications Act of 1934 (47 U.S.C.
503(b)) during the year covered by the report to en-
force the statutes, rules, and policies prohibiting the
broadcasting of obscene, indecent, or profane mate-
rial.
(5) For each such notice, a statement of—
(A) the amount of the proposed forfeiture;
(B) the program, station, and corporate
parent to which the notice was issued;
(C) the length of time between the date on
which the complaint was filed and the date on
which the notice was issued; and
(D) the status of the proceeding.
(6) The number of forfeiture orders issued pur-
suant to section 503(b) of such Act during the year
covered by the report to enforce the statutes, rules,
and policies prohibiting the broadcasting of obscene,
indecent, or profane material.
(7) For each such forfeiture order, a statement
of—
(A) the amount assessed by the final for-
feiture order;
(B) the program, station, and corporate
parent to which it was issued;
(C) whether the licensee has paid the for-
feiture order; and
(D) the amount paid by the licensee.
(8) In instances where the licensee has refused
to pay, whether the Commission referred such order
to the Department of Justice to collect the penalty.
(9) In cases where the Commission referred
such order to the Department of Justice—
(A) the number of days from the date the
Commission issued such order to the date the
Commission referred such order to the Depart-
ment;
(B) whether the Department has com-
menced an action to collect the penalty, and if
such action was commenced, the number of
days from the date the Commission referred
such order to the Department to the date the
action by the Department commenced; and
(C) whether the collection action resulted
in a payment, and if such action resulted in a
payment, the amount of such payment.
SEC. 11. GAO STUDY OF INDECENT BROADCASTING COM-
PLAINTS.
(a) INQUIRY AND REPORT REQUIRED.—The General
Accounting Office shall conduct a study examining—
(1) the number of complaints concerning the
broadcasting of obscene, indecent, and profane mate-
rial to the Federal Communications Commission;
(2) the number of such complaints that result
in final agency actions by the Commission;
(3) the length of time taken by the Commission
in responding to such complaints;
(4) what mechanisms the Commission has es-
tablished to receive, investigate, and respond to such
complaints; and
(5) whether complainants to the Commission
are adequately informed by the Commission of the
responses to their complaints.
(b) SUBMISSION OF REPORT.—The General Account-
ing Office shall submit a report on the results of such
study within one year after the date of enactment of this
Act to the Committee on Commerce, Science, and Trans-
portation of the Senate and the Committee on Energy and
Commerce of the House of Representatives.
SEC. 12. SENSE OF THE CONGRESS.
(a) REINSTATEMENT OF POLICY.—It is the sense of
the Congress that the broadcast television station licensees
should reinstitute a family viewing policy for broadcasters.
(b) DEFINITION.—For purposes of this section, a
family viewing policy is a policy similar to the policy that
existed in the United States from 1975 to 1983, as part
of the National Association of Broadcaster’s code of con-
duct for television, and that included the concept of a fam-
ily viewing hour.
SEC. 13. IMPLEMENTATION.
(a) REGULATIONS.—The Commission shall prescribe
regulations to implement the amendments made by this
Act within 180 days after the date of enactment of this
Act.
(b) PROSPECTIVE APPLICATION.—This Act and the
amendments made by this Act shall not apply with respect
to material broadcast before the date of enactment of this
Act.
(c) SEPARABILITY.—Section 708 of the Communica-
tions Act of 1934 (47 U.S.C. 608) shall apply to this Act
and the amendments made by this Act.
Passed the House of Representatives March 11,
2004.
Attest:
Clerk.
108TH CONGRESS
2D SESSION
H. R. 3717
AN ACT
To increase the penalties for violations by television
and radio broadcasters of the prohibitions
against transmission of obscene, indecent, and
profane material, and for other purposes.