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108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-434
======================================================================
BROADCAST DECENCY ENFORCEMENT ACT OF 2004
_______
March 9, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
[To accompany H.R. 3717]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3717) 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, report favorably thereon
with amendments and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 1
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 5
Hearings......................................................... 7
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 10
Statement of General Performance Goals and Objectives............ 10
New Budget Authority, Entitlement Authority, and Tax Expenditures 10
Committee Cost Estimate.......................................... 10
Congressional Budget Office Estimate............................. 10
Federal Mandates Statement....................................... 11
Advisory Committee Statement..................................... 11
Constitutional Authority Statement............................... 11
Applicability to Legislative Branch.............................. 12
Section-by-Section Analysis of the Legislation................... 12
Changes in Existing Law Made by the Bill, as Reported............ 20
Amendment
The amendments are as follows:
Strike all after the enacting clause and insert the following:
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 following new
subparagraph:
``(C) Notwithstanding subparagraph (A), if the violator 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 Commission, 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, indecent, 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 section 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
factors:
``(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 programming
or had a reasonable basis to believe live or unscripted
programming may 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; and
``(V) whether the programming was part of a
children's television program as described in the
Commission's children's television programming 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 ownership 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 obscene, 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 inserting ``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 inserting
``(iii) in the case of''; and
(D) by inserting after ``that tower'' the following:
``, or (iv) in the case of a determination that a
person uttered obscene, indecent, or profane 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 subparagraph (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 thereof the following new paragraph:
``(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 180 days after the date of the receipt of such
allegation, the Commission shall--
``(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
of the receipt of such allegation, 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.''.
SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.
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 Broadcasting.--In any
proceeding under this section in which the Commission determines that
any broadcast station licensee or permittee has broadcast obscene,
indecent, or profane material, the Commission may, in addition to
imposing a penalty under this section, require the licensee or
permittee to broadcast public service announcements that serve the
educational and informational needs of children. 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,
indecent, 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 Disqualification 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 licensee or permittee
broadcast obscene, indecent, or profane material, and either--
``(1) such forfeiture penalty has been paid, or
``(2) a forfeiture penalty has been determined by the
Commission or an administrative law judge pursuant to paragraph
(3) or (4) of subsection (b), and such penalty is not under
review, and has not been reversed, by a court of competent
jurisdiction,
then, notwithstanding section 504(c), 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 operate a
station.''.
SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLATIONS 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 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--
``(A) such forfeiture penalty has been paid, or
``(B) a forfeiture penalty has been determined by the
Commission or an administrative law judge pursuant to
paragraph (3) or (4) of section 503(b), and such
penalty is not under review, and has not been reversed,
by a court of competent jurisdiction,
then, notwithstanding section 504(c), such violation shall be
treated as a serious violation for purposes of paragraph (1)(B)
of this subsection with respect to the renewal of the license
or permit for such station.''.
SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDECENCY 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 Indecency Prohibitions.--
``(1) Consequences of multiple violations.--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 forfeiture penalty has been determined by the
Commission or an administrative law judge pursuant to
paragraph (3) or (4) of section 503(b), and such
penalty is not under review, and has not been reversed,
by a court of competent jurisdiction,
then, notwithstanding section 504(c), the Commission shall
commence a proceeding under subsection (a) of this section to
consider whether the Commission should revoke the station
license or construction permit of that licensee or permittee
for such station.
``(2) Preservation of authority.--Nothing in this subsection
shall be construed to limit the authority 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 Communications 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)), include the following:
(1) The number of complaints received by the Commission
during the year covered by the report alleging that a broadcast
contained obscene, indecent, or profane material, and the
number of programs 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 remained pending at
the end of the year covered by the annual report.
(4) The number of notices issued by the Commission 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 enforce the statutes, rules, and policies prohibiting
the broadcasting of obscene, indecent, or profane material.
(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 pursuant 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 forfeiture
order;
(B) the program, station, and corporate parent to
which it was issued;
(C) whether the licensee has paid the forfeiture
order;
(D) the amount paid by the licensee; and
(E) in instances where the licensee refused to pay,
whether the Department of Justice brought an action in
Federal court to collect the penalty.
SEC. 11. 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 conduct for television, and that included the
concept of a family viewing hour.
SEC. 12. 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 Communications Act of 1934 (47
U.S.C. 608) shall apply to this Act and the amendments made by this
Act.
Amend the title so as to read:
A bill to increase the penalties for violations by
television and radio broadcasters of the prohibitions against
transmission of obscene, indecent, and profane material, and
for other purposes.
Purpose and Summary
The purpose of H.R. 3717, the ``Broadcast Decency
Enforcement Act of 2004,'' is to provide the Federal
Communications Commission (FCC) with enhanced authority to deal
with obscenity, indecency and profanity on broadcast
television.
Background and Need for Legislation
In 1961, then-FCC Chairman Newton Minow called television a
``vast wasteland.'' Today, over 40 years later, similar
complaints continue to be made against broadcast television and
radio stations. Increasingly, parents, educators, and families
are concerned about the material that is broadcast on
television and radio, and the effect the material has on
America's children.
Nielsen Media Research shows the average American watches 3
hours and 43 minutes of television each day--the equivalent of
56 days of nonstop television watching every year. Such viewing
habits, particularly for children, have the potential to
significantly shape their development, their education, and
their outlook on the world. In a study on foul language on
television, the Parents Television Council found that such
language increased overall during every timeslot between 1998
and 2002. Foul language during the ``family hour'' increased by
94.8 percent between 1998 and 2002 and by 109.1 percent during
the 9:00 p.m. time slot.
Studies also show that parents are increasingly concerned.
According to the Kaiser Family Foundation, more than four out
of five parents are concerned that their children are being
exposed to too much sex on television. A 1996 U.S. News and
World Report survey found that 88% of Americans thought
incivility was a serious problem. When asked about the
consequences of this decline in civility, respondents cited an
increase in violence, divided communities, and eroding moral
values.
These concerns about programming content were exacerbated
when, on Sunday, February 1, 2004, CBS broadcast the National
Football League's Super Bowl XXXVIII, viewed nationally and
internationally by 100 million people. The halftime show, which
was produced by MTV, featured a performance by, among others,
singers Janet Jackson and Justin Timberlake that ended in the
exposure of Ms. Jackson's breast. Many Americans have
complained that much of the halftime broadcast show, which is
generally considered a ``family friendly'' event, was
inappropriate for family viewing, particularly given that so
many children were apt to be watching it on television. The
Super Bowl incident garnered attention on its own, but was
preceded by other television incidents, such as NBC's live
broadcast of the 2003 Golden Globe Awards where the singer Bono
used an expletive, and Fox's live broadcast of the 2003
Billboard Awards where actress Nicole Richie used a string of
expletives. Broadcast radio is no better, and is arguably worse
than broadcast television, with ample examples of indecent
broadcasts by various ``shock jocks.'' For instance, on August
15, 2002, the ``Opie & Anthony Show'' broadcast descriptions of
a couple having intercourse in St. Patrick's Cathedral. The
``Bubba, The Love Sponge Show'' has also been the subject of
numerous complaints for, among other things, graphic and
explicit discussions of oral sex, masturbation, and other
sexual activities. All of these examples have highlighted the
need for stronger penalties for broadcast obscenity, indecency
and profanity.
The outpouring of interest regarding these incidents is
symptomatic of a larger feeling among many Americans that some
television and radio broadcasters are engaged in a ``race to
the bottom'' in order to distinguish themselves in an
increasingly crowded entertainment field. In addition,
individual performers and on-air talent appear to be engaged in
a ``race to the bottom'' even though some licensees have
instituted policies to prevent such conduct.
Congress has taken some steps to help parents steer their
children to appropriate programming. For instance, Congress
passed legislation requiring ``V-chip'' technology, that reads
information encoded in the rated program and blocks programs
from the set based upon the rating selected by the parent.
Since 2000, all television sets with picture screens 13 inches
or larger must be equipped with features to block the display
of television programming based upon its rating. Congress also
gave the broadcasting industry the first opportunity to
establish voluntary ratings. The rating system, also known as
``TV Parental Guidelines,'' rates programming that contains
sexual, violent or other material parents may deem
inappropriate. These ratings are displayed on the television
screen for the first 15 seconds of rated programming and, in
conjunction with the V-Chip, permit parents to block
programming with a certain rating from coming into their home.
Additionally, in 1990, Congress enacted the Children's
Television Act (CTA) to increase the amount of educational and
informational programming available to children on television.
CTA requires each broadcast television station to air at least
three hours per week of core educational programming and limits
the amount of time broadcasters may devote to commercial matter
during children's programming.
Despite these good efforts, more needs to be done. American
families should be able to rely on the fact that, at times when
their children are likely to be tuning in, broadcast television
and radio programming will be free of indecency, obscenity, and
profanity. Congress has given the FCC the responsibility to
help protect American families in this regard. In light of
recent television and radio events, it is evident that the FCC
needs additional and enhanced authority to pursue bad actors.
H.R. 3717 provides the FCC with that authority.
Although the FCC is prohibited from reviewing or
prescreening television or radio programming for content, the
FCC currently has the authority to enforce rules and laws
restricting the broadcast of obscenity, indecency, and
profanity. Federal law specifically prohibits the utterance of
``any obscene, indecent or profane language by means of radio
communication'' (18 U.S.C. 1464) and the FCC is charged with
enforcing this statute (47 U.S.C. 503). By regulation, the FCC
prohibits the broadcast of obscene material at any time, and
indecent material during the hours of 6 a.m. to 10 p.m. (47
C.F.R. 73.3999), the time period when children are most likely
to be watching television and listening to the radio.
Existing law gives the FCC the ability to pursue forfeiture
penalties against licensees or permittees for broadcasting
obscenity, indecency, or profanity. The penalty, however, is
hardly a deterrent with a cap of only $27,500 for each
violation. (47 U.S.C. 503(2)(A)). The FCC also has the
authority to assess forfeiture penalties against nonlicensees,
but only after first citing an offender, then waiting for a
second offense to issue a forfeiture order (47 U.S.C.
503(b)(5)), which makes it virtually impossible for the FCC to
effectively enforce its indecency rules against nonlicensees.
The current cap on fines for nonlicensees is only $11,000,
which, even if the FCC could invoke the two-step process
necessary to fine nonlicensees, is hardly a deterrent to
entertainment performers who often make more than ten times
that amount for each performance. A much greater deterrent for
nonlicensees is critical. In addition to forfeiture penalties,
the FCC has the power to revoke any station license or
construction permit for violations of the law or its
regulations. (47 U.S.C. 312(a)(6)). License revocation,
however, has never been utilized by the FCC for obscenity,
indecency or profanity violations.
Hearings
The Subcommittee on Telecommunications and the Internet
held one oversight hearing on indecency and two legislative
hearings on H.R. 3717. On January 28, 2004, the Subcommittee
received testimony from: David Solomon, Chief of the
Enforcement Bureau, FCC; Brent Bozell, President, Parent's
Television Council; Robert Corn-Revere, Partner, Davis Wright
Tremaine, LLP; and William Wertz, Executive Vice President,
Fairfield Broadcasting Company. The second hearing was on
February 11, 2004, and the Subcommittee received testimony
from: Paul Tagliabue, Commissioner, National Football League;
Mel Karmazin, President and Chief Operating Officer, Viacom,
Inc.; and the five FCC Commissioners, Chairman Michael Powell,
and Commissioners Kathleen Abernathy, Michael Copps, Kevin
Martin, and Jonathan Adelstein. On February 26, 2004, the
Subcommittee held a third hearing and received testimony from:
Alex Wallau, President, ABC Television Network; Gail Berman,
President of Entertainment, Fox Broadcasting Company; Dr. Alan
Wurtzel, President of Research and Media Development, National
Broadcasting Company; Lowell ``Bud'' Paxson, Chairman and Chief
Executive Officer, Paxson Communications Corporation; John
Hogan, President and Chief Executive Officer, Clear Channel
Radio; and Harry J. Pappas, Chairman and Chief Executive
Officer, Pappas Telecasting Companies.
Committee Consideration
On Thursday, February 12, 2004, the Subcommittee on
Telecommunications and the Internet met in open markup session
and approved H.R. 3717 for Full Committee consideration, by a
voice vote, a quorum being present. On Wednesday, March 3,
2004, the Full Committee met in open markup session and ordered
H.R. 3717 favorably reported to the House, as amended, by a
record vote of 49 yeas and 1 nay, a quorum being present.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Chairman Barton to order H.R. 3717 reported to the
House, as amended, was agreed to by a recorded vote of 49 ayes
to 1 nay. Chairman Barton asked for and received unanimous
consent to make technical and conforming changes to the bill.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held an oversight and
two legislative hearings and made findings that are reflected
in this report.
Statement of General Performance Goals and Objectives
The goal of H.R. 3717 is to increase the penalties for
violations by television and radio broadcasters and
nonlicensees of the prohibitions against transmission of
obscene, indecent, and profane material, and for other
purposes.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
3717, the ``Broadcast Decency Enforcement Act of 2004,'' would
result in changes to budget authority, entitlement authority,
and tax expenditures and revenues to the extent stated below in
the Committee Cost Estimate.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 8, 2004.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3717, 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 contact is Melissa E.
Zimmerman.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 3717--Broadcast Decency Enforcement Act of 2004
H.R. 3717 would increase the maximum civil penalty for
broadcasting obscene, indecent or profane material. (Such
penalties are recorded in the budget as revenues.) Under the
bill, CBO estimates that revenues resulting from these
penalties would increase by less than $500,000 in 2004 and by
around $5 million over the 2005-2009 period. CBO estimates that
implementing H.R. 3717 would not have a significant effect on
spending subject to appropriation and would not affect direct
spending.
H.R. 3717 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 $500,000. 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 2004.
CBO estimates that under H.R. 3717, collections of
penalties for broadcasting obscene, indecent, or profane
material would increase by less than $500,000 in 2004 and by
around $1 million per year over the 2004-2009 period. The
increase in collections could be much higher or lower
considering that the number of penalties varies widely from
year to year.
H.R. 3717 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would be
unlikely to impose costs on state, local, and tribal
governments. The bill contains no new private-sector mandates
as defined in UMRA. To the extent that public broadcasters
would be affected by the increased penalties for indecency,
they would incur additional costs. CBO estimates that those
additional costs, if any, would be minimal because complaints
regarding indecency against publicly owned broadcasting outlets
are rare. The bill contains no new private-sector mandates as
defined in UMRA.
The CBO contacts for this estimate are Melissa E. Zimmerman
(for federal costs), Sara Puro (for the state and local
impact), and Jean Talarico (for the private-sector impact).
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 establishes the short title of the bill, the
``Broadcast Decency Enforcement Act of 2004.''
Section 2. Increase in penalties for obscene, indecent, and profane
broadcasts
Section 2 of the bill amends section 503(b)(2) of the
Communications Act of 1934 (47 U.S.C. 503(b)(2)) by increasing
the existing forfeiture penalty cap for broadcast station
licensees or permittees (hereinafter ``licensee'') for
broadcasting obscene, indecent, or profane materials from
$27,500 per violation to $500,000 per violation. Additionally,
section 2 increases the existing forfeiture penalty cap for
other persons (nonlicensees) for uttering obscene, indecent, or
profane material from $11,000 per violation to $500,000 per
violation.
It should be noted that the $500,000 figure, while a
significant increase from the current statutory penalties, is a
ceiling, not a floor. The Committee expects that each complaint
filed with the FCC will present different and unique facts that
will justify a diverse range of penalties. This increased
fining authority provides the FCC with the necessary discretion
to adequately penalize a full range of violations, from, for
example, particularly egregious offenses by large corporate
actors to minor offenses by small companies or private
individuals. Moreover, if the Commission opts to assess
forfeiture penalties on a ``per utterance'' basis, then the
Committee expects the Commission to take into account the
multiplying effect of finding numerous violations when
determining the level of penalty per utterance.
In setting the penalties for licensees and nonlicensees,
the Committee was particularly careful to set a strong but
appropriate penalty cap. The figure of $500,000 is not so high
as to be disproportionate to a particularly egregious offense.
Conversely, the amended penalty is high enough to provide a
real deterrent to licensees and nonlicensees who may be tempted
to push the envelope of decency for higher ratings or increased
advertising revenues. Additionally, the Committee intentionally
set the same forfeiture penalty cap for licensees as it did for
nonlicensees. Regardless of the source of the obscene,
indecent, or profane speech, the harmful impact on children is
identical. See City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410 (1993) (finding that a distinction between
commercial and noncommercial newsracks bore ``no relationship
whatsoever to the particular interests that the city had
asserted.'')
Finally, it is the Committee's hope that these increased
fines will provide an additional incentive for the Department
of Justice to institute recovery proceedings to collect the
outstanding penalties under section 504(a). Unfortunately,
today's forfeiture penalties are so inconsequential that it
hardly justifies using the Department's scarce resources. The
revised penalty scheme in section 2 reverses that. In light of
this change, it is anticipated that the Department will be more
diligent in collecting FCC forfeiture penalties.
Section 3. Additional factors in indecency penalties; exception
Section 3 amends section 503(b)(2) of the Communications
Act of 1934 (47 U.S.C. 503(b)(2)) by expanding the current
factors the FCC is required to consider when levying a
forfeiture penalty for violations of obscenity, indecency, or
profanity. Under current law, the FCC must, with respect to the
violator, take into account ``the degree of culpability, any
history of prior offenses, ability to pay, and such other
matters as justice may require.'' (47 U.S.C. 503(b)(3)(D)).
Because this bill significantly increases the forfeiture
authority of the FCC, the Committee found it necessary to
provide the Commission with more direction in exercising its
discretion to set appropriate penalties for indecency
violations. Specifically, section 3 expands upon two factors:
degree of culpability and ability to pay.
With respect to ``degree of culpability,'' section 2
requires the FCC to consider factors such as (1) whether the
material uttered by the violator was live or recorded, scripted
or unscripted; (2) 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; (3) if the
violator originated live or unscripted programming, whether a
time delay blocking mechanism was implemented for the
programming; (4) the size of the viewing or listening audience;
and, (5) whether the programming was part of a children's
television program under the Commission's children's television
programming policy (47 C.F.R. 73.4050(c)).
The Committee views these factors as the best way to
provide the FCC the necessary guidance to assess appropriate
penalties. Whether the material was live or recorded, scripted
or unscripted is relevant to the issue of intent of the
violator who uttered the message. For instance, whether the
violator had the reasonable opportunity to review programming
will be a particularly meaningful factor in determining the
level of culpability. If a licensee had a reasonable basis to
believe live programming would contain obscene, indecent or
profane content, perhaps based on previous violations by an
artist for similar programming, then that is a factor the FCC
should weigh to determine the culpability of the licensee.
The decision by an originator of content to institute a
time delay of live or unscripted programming is also a relevant
factor in setting the amount of any penalty as it speaks to the
attempts taken by the network or broadcaster to protect its
audience. The size of the listening or viewing audience is
relevant to the scope of the harm. Finally, whether the
programming was aired as part of a children's television
program under the Commission's children's television
programming policy is particularly important since the notion
underlying the Act's prohibition of indecency is to protect
children.
With respect to ``ability to pay,'' section 2 requires the
FCC to consider factors such as (1) whether the violator is a
company or individual, and (2) if the violator is a company,
the size of the company and the size of the market served.
Generally, it is envisioned that a company will be subject to
higher penalties than individuals, although certainly that will
not always be the case. Additionally, the FCC should weigh and
consider the relative size of a company, including such factors
as revenues and number of employees, and should further examine
the geographic size and population density of the market in
setting any penalty.
Section 3 also creates a new section 503(b)(2)(G) in the
Communications Act of 1934 that exempts from forfeiture
penalties a broadcast station licensee that receives
programming from a network organization, but is not owned or
controlled, or under common ownership or control with, a
network organization, for the broadcast of obscene, indecent,
or profane material. This exemption only applies if: (1) the
material was within live or recorded programming provided by
the network organization to the licensee, and (2) the
programming was recorded or scripted, and the licensee was not
given a reasonable opportunity to review the programming in
advance, or the programming was live or unscripted, and the
licensee had no reasonable basis to believe the programming
would contain obscene, indecent, or profane material.
Congress has given local station licensees special
responsibilities to serve their local communities. The holder
of a local station license, as a public trustee, is charged
under section 73.658 of the Commission's regulations with the
legal duty of accepting or rejecting network programs
consistent with standards that are most appropriate for that
community.
During its hearings, the Committee heard testimony
indicating a tension between television networks and their non-
network owned and operated broadcast station licensees
regarding the licensees' unfettered right to reject programming
for content reasons. Consistent with current law, a licensee
should be able to preempt any network programming if it
believes that such programming is not consistent with its local
community standards. In order to properly reject programming,
however, a local broadcaster must either be able to prescreen
content or have some notice that inappropriate content may be
included in live programming.
The new language in section 503(b)(2)(G) is designed to
insulate local broadcasters from liability if they were not
provided with a reasonable opportunity to review recorded or
scripted programming, such as being given an advance copy of a
show. Similarly, if the licensee has no reasonable basis to
believe live or unscripted programming will contain
inappropriate material, as would be suggested by programming
with prior indecency violations, then fairness dictates that
the licensee should not be held responsible for the broadcast
of obscene, indecent, or profane material.
This provision also requires the FCC to define ``network
organization'' for purposes of this subparagraph. The Committee
expects the FCC to define this term to include all television
networks. To the extent that business arrangements in other
media, such as those involving radio networks or, perhaps,
programming syndicators, similarly hinder the ability of
licensees to reasonably determine whether programming will
contain obscene, indecent, or profane material, then the
Committee expects the Commission to determine whether the term
should be expanded to include radio network or programming
syndicators as well. The goal of this section is to shield non-
network owned and operated affiliates from liability in
situations where they have no reasonable opportunity to review
scripted or recorded programming, or no reasonable basis to
believe live or unscripted programming will contain obscene,
indecent, or profane material. The Committee expects that the
Commission will develop a complete record and define the term
``network organization'' to effectuate that intent.
The Committee made the distinction between network owned-
and-operated station licensees (O&O;) and non-network O&O;
station licensees because of the unique relationship between
the network and the O&O.; The O&O; licensee is part of the
network's corporate family; therefore any forfeiture penalty
from an obscene, indecent, or profane broadcast by an O&O; would
run to the corporate parent. In light of this relationship, it
is not unreasonable to expect that O&Os; could receive special
or favorable treatment as compared to the non-O&O; station
licensees in receiving advance copies of programming or advance
notice of controversial content. Given their proximity within
the same corporate structure, it is reasonable to attribute
knowledge about programming from the network to an O&O.; For
this reason, the Committee did not include O&Os; within the
liability shield contained in the new section 503(b)(2)(G).
Section 4. Indecency penalties for nonlicensees
Section 4 amends section 503(b)(5) of the Communications
Act of 1934 (47 U.S.C. 503(b)(5)) to streamline the process
governing how the FCC may apply the prohibition of broadcasting
obscene, indecent, or profane material to nonlicensees, such as
networks and individuals. Section 4 allows the FCC to pursue
forfeiture penalties against nonlicensees upon a determination
that a person uttered obscene, indecent, or profane material
that was broadcast by a broadcast station licensee, if the
person is determined to have ``willfully or intentionally''
made the utterance.
The FCC currently has the authority to assess forfeiture
penalties upon nonlicensees, but unlike 503(b)(2)(A) which
allows the FCC to seek a forfeiture penalty against licensees
on the first violation, section 503(b)(5) requires a
cumbersome, two-step process for nonlicensees that first
requires the issuance of a citation, and then a subsequent
similar violation before the FCC may issue a Notice of Apparent
Liability. The current law is particularly unwieldy, making it
difficult for the FCC to use section 503(b)(5) to enforce
indecency laws against performers, who are increasingly using
public broadcast airwaves in inappropriate ways, often in
violation of the FCC's indecency rules. It is the hope of the
Committee that amending section 503(b)(5) will make the
application of obscenity, indecency, and profanity laws against
networks and individuals less burdensome, thus increasing
enforcement.
Under the plain meaning of current 503(b)(5), the language
applies to both networks and individuals. Section 503(b)(1)
provides that ``any person'' who violates 18 U.S.C. 1464 shall
be liable for a forfeiture penalty. ``Person'' is defined in
section 3(32) of the Communications Act as an ``individual,
partnership, association, joint-stock company, trust or
corporation.'' Therefore, any person who under 18 U.S.C. 1464
``utters any obscene, indecent, or profane language by means of
radio communication'' can be found liable. Since the creation
of 18 U.S.C. 1464, the FCC has used this authority to hold
licensees responsible for obscene, indecent, or profane
broadcasts that they ``uttered'' using ``radio communication.''
Networks can be considered to have ``uttered'' indecent
material over ``radio communication'' in a similar way that a
broadcast station does. Networks are originating material that
comes into the home over-the-air. Accordingly, the Committee
believes there is no obstacle that would prevent the
application of section 503(b)(5) to network organizations.
There is also no bar from using section 503(b)(5) to hold
individuals responsible for their intentional or willful speech
on broadcast television or radio. This year's Super Bowl
halftime show highlighted how the actions of individual
performers can drastically alter the tenor of programming aimed
at an audience filled with children. An individual can be held
liable under this provision because it is clearly the
individual who ``utters'' the offending language or material
over ``radio communication.''
The Committee uses the phrase ``willfully or
intentionally'' to protect nonlicensees, both networks and
individuals, from being held liable for inadvertent or
accidental speech. The willful or intentional standard is meant
to capture those incidents where an individual intentionally
utters material, consciously and deliberately, which they know
will be broadcast. However, the standard is not so strict that
a person must know that his or her speech is legally obscene,
indecent or profane. It is enough that he or she intentionally
makes the utterance that he or she knows is being or will be
broadcast.
The Committee believes that the bill poses no danger to the
First Amendment Constitutional rights of individuals or
corporations. The underlying statute, 18 U.S.C. 1464, applies
to ``whoever utters any obscene, indecent, or profane language
by means of radio communication.'' The FCC has interpreted this
provision to apply to any over-the-air broadcast, whether by
television or radio. The language of the statute, on its face,
applies to the ``utterer'' of speech disseminated by radio
communication, whether uttered by an individual or corporate
entity. Courts have held that there is a significant societal
interest in speech, which is distinct from the speaker. See
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777
(1978). ``It is the type of speech indispensable to decision
making in a democracy, and this is no less true because the
speech comes from a corporation rather than an individual. The
inherent worth of the speech in terms of its capacity for
informing the public does not depend upon the identity of its
source, whether corporation, association, union, or
individual.'' Id. (citations omitted).
The speech by any ``person'' is subject to a strict
scrutiny analysis if a government regulation is a content-based
one. Strict scrutiny requires a compelling government interest,
and a regulation that achieves the goal using the least
restrictive means. (Sable Communications of California v. FCC,
492 U.S. 115, 126 (1989)). The Supreme Court has already
determined that there is a compelling government interest in
protecting children from indecent speech disseminated by radio
communication. Because broadcast media has a ``uniquely
pervasive presence'' in the lives of all Americans and because
broadcasting is ``uniquely accessible to children,'' the
government has the power to restrict the over-the-air broadcast
of indecent language in certain circumstances. (FCC v.
Pacifica, 438 U.S. 726, 749 (1978)). Additionally, the D.C.
Circuit has found that restricting indecent speech in over-the-
air broadcasts between the hours of 6 a.m. and 10 p.m. is the
least restrictive means of achieving the goal of protecting
children. (Action for Children's Television v. FCC, 58 F.3d
654, 666 (1995)). Since the D.C. Circuit has upheld reasonable
restrictions on the broadcast of indecent programming by
licensees, there is no reason why such reasonable restrictions
would not also be Constitutional as applied to nonlicensees. As
noted by the D.C. Circuit Court in the Action for Children's
Television v. FCC case, ``whatever chilling effect may be said
to inhere in the regulation of indecent speech, these have
existed ever since the Supreme Court first upheld the FCC's
enforcement of section 1464 of the Radio Act.'' Id.
Section 5. Deadlines for action on complaints
Section 5 amends section 503(b) of the Communications Act
of 1934 (47 U.S.C. 503(b)) by adding a new paragraph (7) which
establishes deadlines for action by the FCC on obscenity,
indecency, or profanity complaints. The language requires the
FCC to, within 180 days after a complaint is filed, issue the
required notice to the licensee, permittee or person making the
utterance under paragraphs (3) (which allows notice and hearing
before the Commission or an administrative law judge) or (4)
(which allows the Commission to issue a Notice of Apparent
Liability), or notify the licensee, permittee or person and
complainant that the Commission has determined not to issue
either notice. If the Commission issues a notice, it must
either issue a forfeiture order or dismiss the complaint within
270 days after the complaint was filed, unless the penalty has
been paid or the violator has entered into a settlement.
The Committee heard testimony indicating there were delays
in the FCC evaluating and pursuing obscenity, indecency and
profanity complaints. Indeed, according to the Commission, in
2002, 13,922 complaints were filed involving 345 programs. In
2003, 240,350 complaints were filed involving 318 programs.
According to the FCC, there were 664 complaints pending at the
end of 2002, and there were 239,982 complaints pending at the
end of 2003 (although many are multiple complaints about
specific programs). Additionally, only seven Notices of
Apparent Liability were issued in 2002 (although one was
withdrawn) and three Notices of Apparent Liability were issued
in 2003. Generally, these Notices of Apparent Liability are
issued over a year from the date of complaint. The Committee is
hopeful that this new paragraph will ensure that complaints do
not languish at the FCC and are expeditiously brought to
completion.
Section 6. Additional remedies for indecent broadcast
Section 6 adds a new subsection (c) to section 503 of the
Communications Act of 1934 (47 U.S.C. 503) that provides the
FCC additional remedies for obscene, indecent, or profane
broadcasts. If the Commission determines that any broadcast
station licensee has broadcast obscene, indecent, or profane
material, the Commission may, in addition to any forfeiture
penalty, require the violator to broadcast public service
announcements (PSAs) that serve the educational and
informational needs of children. These PSAs may be required to
reach an audience that is up to five times the size of the
audience that was estimated to have been reached by the
offending broadcast. It is hoped that this remedial action will
help to counter the negative effects brought on by the initial
obscene, indecent or profane broadcast.
Section 7. License disqualification for violations of indecency
prohibitions
Section 7 adds a new subsection (d) to section 503 of the
Communications Act of 1934 (47 U.S.C. 503) which requires the
FCC to consider a violation of obscenity, indecency, or
profanity prohibitions when examining whether the applicant
lacks the character or other qualifications required to operate
a station under sections 308(b) and 310(d) of the
Communications Act of 1934. The FCC may only use the violation
for such purposes if a forfeiture penalty has been paid or a
forfeiture penalty has been determined by the Commission or an
administrative law judge and such penalty is not under review,
and has not been reversed, by a court of competent
jurisdiction. This language only requires the FCC to consider a
violation in its examinations under section 308(b) and 310(d),
but does not require any particular outcome.
Section 308(b) states that all applications for station
licenses, or modifications or renewals of licenses, must set
forth facts that show the applicant has the character and other
necessary qualifications to operate the station. Section 310(d)
states that no station license may be transferred, assigned, or
disposed of in any manner, without an application to the FCC,
but that any application shall be disposed of as if an
application for a license was being made under section 308.
Therefore, in any request for change of control, or
modification of, a license, the FCC will now be required to
consider the effect of an obscenity, indecency, or profanity
violation to the issue of character. It is the Committee's
intent that the character considerations under this section
should be applicable to those persons attempting to purchase
additional station licenses, or applying to modify their
existing licenses.
Section 8. License renewal consideration of violations of indecency
prohibitions
Section 8 amends section 309(k) of the Communications Act
of 1934 (47 U.S.C. 309(k)) by adding a new paragraph (5). This
language requires the FCC to treat any obscenity, indecency, or
profanity violation of section 503(b) as a ``serious
violation'' for purposes of license renewal. Such a violation
may only be considered as a ``serious violation'' if the
forfeiture penalty has been paid or a forfeiture penalty has
been determined by the Commission or an administrative law
judge and such penalty is not under review, and has not been
reversed, by a court of competent jurisdiction.
Under the current section 309(k), a licensee has a
presumption of renewal if: (1) the station has served the
public interest, convenience, and necessity; (2) there have
been no serious violations by the licensee of the Act or the
rules and regulations of the Commission; and, (3) there have
been no other violations by the licensee of this Act or the
rules and regulations of the Commission, which taken together,
would constitute a pattern of abuse. The amendment to 309(k)
removes the presumption for entities that violate the
obscenity, indecency, and profanity restrictions by deeming an
obscenity, indecency, or profanity offense to be a ``serious
violation.''
To be clear, this language reverses the presumption that
has only been in effect since 1996. Prior to 1996, even without
a presumption of renewal, broadcast licenses were routinely and
commonly renewed. This section is designed to add another
factor to the decision to renew a license. Under the current
language in section 309(k), the FCC must continue to examine
mitigating factors and examine other less severe alternatives
to non-renewal.
Finally, in the situation where one licensee holds the
licenses for a number of different stations, it is not the
intent of the Committee to hold each station responsible for
the obscene, indecent, or profane conduct of other stations.
Therefore, in the event of license renewal, the offenses of one
station should only apply to the renewal or revocation of that
particular station, and should not be imputed to the other
stations held by that licensee.
Section 9. License revocation for violations of indecency prohibitions
Section 9 amends section 312 of the Communications Act of
1934 (47 U.S.C. 312) by adding a new subsection (h). The new
language requires the FCC to commence a hearing to consider
license revocation if, during the term of the license, a
licensee accrues three or more obscenity, indecency, or
profanity violations. The FCC may only use the violations for
such purposes if a forfeiture penalty has been paid or a
forfeiture penalty has been determined by the Commission or an
administrative law judge and such penalty is not under review,
and has not been reversed, by a court of competent
jurisdiction.
Nothing in this provision requires the FCC to revoke a
license upon three indecency violations, but only requires that
the Commission hold a hearing to consider license revocation.
Moreover, nothing in this section requires the FCC to wait
until the third violation to revoke a license. If a first or
second violation of the obscenity, indecency, or profanity laws
was egregious enough to warrant holding a revocation hearing or
actually revoking a license, nothing in the act should be
construed to prohibit that result.
Similar to license renewal discussed in section 8, where
one licensee holds the licenses for a number of different
stations, it is not the intent of the Committee to hold each
station responsible for the obscene, indecent, or profane
conduct of other stations. Therefore, in the event of license
revocation, the offenses of one station should only apply to
the renewal or revocation of that particular station license,
and should not be imputed to the other stations held by that
licensee.
Finally, if the Commission opts to assess penalties on a
``per utterance'' basis, then the Committee urges the
Commission use caution and to consider that assessing penalties
on a ``per utterance'' basis may have the highly punitive
effect of referring a license to a revocation proceeding on the
basis of a single broadcast program.
Section 10. Required contents of annual reports of the Commission
Section 10 adds reporting requirements relating to FCC
action on obscenity, indecency, and profanity complaints to be
included as part of the Commission's annual report under
4(k)(2) of the Communications Act of 1934 (47 U.S.C.
154(k)(2)). Specifically, the FCC must report on: (1) the
number of annual obscenity, indecency, and profanity complaints
received by the Commission, and the number of programs to which
such complaints relate; (2) the number of dismissed or denied
complaints; (3) the number of complaints pending at the end of
the year; (4) the number of notices issued by the Commission
under section 503(b)(3) and (4); (5) for each notice, a
statement of the amount of the proposed penalty, the program,
station, and corporate parent (or any non-corporate entity with
control over the station) to which the notice was issued, the
length of time between filing of the complaint and the date the
notice was issued, and the status of the proceeding; (6) the
number of forfeiture orders issued under section 503(b); and,
(7) for each forfeiture order, a statement of the amount
assessed by the order, the program, station and corporate
parent (or any non-corporate entity with control over the
station) to which it was issued, whether the licensee paid the
order, the amount paid, and instances the licensee refused to
pay, whether the Department of Justice brought an action for
recovery to collect the penalty.
Section 11. Sense of the Congress
Section 11 is a sense of Congress that the broadcast
television station licensees should reinstate a family viewing
policy for broadcasters. The family viewing policy is a policy
similar to the policy in the National Association of
Broadcaster's code of conduct that was in effect from 1975 to
1983.
Empirical research shows that 71% of prime time television
shows on the four major broadcast networks contain some form of
sexual content, and that of children age 8-18 years, 86% of
children have radios, and 65% of children have televisions, in
their bedroom. Therefore, the Committee notes that the need for
a voluntary industry family viewing policy is an appropriate
response to the growing threat from indecent programming.
Section 12. Implementation
Section 12(a) requires the Commission to prescribe
regulations to implement the amendments made by the act within
180 days after the date of enactment.
Section 12(b) makes the act and the amendments made by the
act prospective in nature. Any material broadcast before the
date of enactment of the act is not covered.
Section 12(c) makes clear that section 708 of the
Communications Act of 1934 (47 U.S.C. 608) relating to
separability applies to the act and the amendments made by the
act. The inclusion of this separability clause in no way
implies that any provision of the act is legally suspect or
infirm. The Committee strongly believes that every section of
H.R. 3717 is constitutional and would withstand judicial
scrutiny.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, 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
matter 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
* * * * * * *
SEC. 309. ACTION UPON APPLICATIONS; FORM OF AND CONDITIONS ATTACHED TO
LICENSES.
(a) * * *
* * * * * * *
(k) Broadcast Station Renewal Procedures.--
(1) * * *
* * * * * * *
(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 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--
(A) such forfeiture penalty has been paid, or
(B) a forfeiture penalty has been determined
by the Commission or an administrative law
judge pursuant to paragraph (3) or (4) of
section 503(b), and such penalty is not under
review, and has not been reversed, by a court
of competent jurisdiction,
then, notwithstanding section 504(c), such violation
shall be treated as a serious violation for purposes of
paragraph (1)(B) of this subsection with respect to the
renewal of the license or permit for such station.
* * * * * * *
SEC. 312. ADMINISTRATIVE SANCTIONS.
(a) * * *
* * * * * * *
(h) License Revocation for Violations of Indecency
Prohibitions.--
(1) Consequences of multiple violations.--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 forfeiture penalty has been determined
by the Commission or an administrative law
judge pursuant to paragraph (3) or (4) of
section 503(b), and such penalty is not under
review, and has not been reversed, by a court
of competent jurisdiction,
then, notwithstanding section 504(c), the Commission
shall commence a proceeding under subsection (a) of
this section to consider whether the Commission should
revoke the station license or construction permit of
that licensee or permittee for such station.
(2) Preservation of authority.--Nothing in this
subsection shall be construed to limit the authority of
the Commission to commence a proceeding under
subsection (a).
* * * * * * *
TITLE V--PENAL PROVISIONS--FORFEITURES
* * * * * * *
SEC. 503. FORFEITURES IN CASES OF REBATES AND OFFSETS.
(a) * * *
(b)(1) * * *
(2)(A) * * *
* * * * * * *
(C) Notwithstanding subparagraph (A), if the violator 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 Commission, 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.
[(C)] (D) In any case not covered in [subparagraph (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. Notwithstanding the preceding sentence, if the
violator is determined by the Commission under paragraph (1) to
have uttered obscene, indecent, 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.
[(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, indecent, or profane material, the Commission
shall take into account, in addition to the matters described
in subparagraph (E), the following factors:
(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
programming or had a reasonable basis to
believe live or unscripted programming may
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; and
(V) whether the programming was part of a
children's television program as described in
the Commission's children's television
programming 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 ownership 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 obscene,
indecent, or profane material.
The Commission shall by rule define the term ``network
organization'' for purposes of this subparagraph.
* * * * * * *
(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 [(A)] (i) is sent a citation of the violation charged;
[(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 [(C)] (iii) subsequently engages in
conduct of the type described in such citation. [The provisions
of this paragraph shall not apply, however,]
(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, if the
person] 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), [or in the case of] (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 licensee or permittee, if the person is determined to
have willfully or intentionally made the utterance.
(C) Whenever the requirements of this paragraph are satisfied
with respect to a paricular 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.
* * * * * * *
(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 180 days after the date of the receipt of
such allegation, the Commission shall--
(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 of the receipt of such
allegation, 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.
(c) Additional Remedies for Indecent Broadcasting.--In any
proceeding under this section in which the Commission
determines that any broadcast station licensee or permittee has
broadcast obscene, indecent, or profane material, the
Commission may, in addition to imposing a penalty under this
section, require the licensee or permittee to broadcast public
service announcements that serve the educational and
informational needs of children. 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, indecent, or profane material, as determined in
accordance with regulations prescribed by the Commission.
(d) Consideration of License Disqualification 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 licensee or permittee broadcast obscene, indecent, or
profane material, and either--
(1) such forfeiture penalty has been paid, or
(2) a forfeiture penalty has been determined by the
Commission or an administrative law judge pursuant to
paragraph (3) or (4) of subsection (b), and such
penalty is not under review, and has not been reversed,
by a court of competent jurisdiction,
then, notwithstanding section 504(c), 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 operate a station.
* * * * * * *
