[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3717 Reported in House (RH)]






                                                 Union Calendar No. 251
108th CONGRESS
  2d Session
                                H. R. 3717

                          [Report No. 108-434]

   To increase the penalties for violations by television and radio 
   broadcasters of the prohibitions against transmission of obscene, 
                    indecent, and profane language.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 21, 2004

   Mr. Upton (for himself, Mr. Markey, Mr. Tauzin, Mr. Dingell, Mr. 
Bilirakis, Mr. Barton of Texas, Mr. Stearns, Mr. Gillmor, Mr. Bass, Mr. 
 Greenwood, Mr. Burr, Mr. Blunt, Mr. Shimkus, Mr. Terry, Mr. Weldon of 
 Pennsylvania, Mr. Wolf, Mr. Smith of Texas, Mr. Green of Texas, Mrs. 
    Wilson of New Mexico, Mr. Gordon, Mr. Whitfield, Mrs. Bono, Ms. 
 McCarthy of Missouri, Mr. Wynn, Mrs. Cubin, and Mr. Pitts) introduced 
 the following bill; which was referred to the Committee on Energy and 
                                Commerce

                             March 9, 2004

   Additional sponsors: Mr. Ehlers, Mr. Matheson, Mr. Jones of North 
   Carolina, Mr. Everett, Mr. Rogers of Michigan, Mrs. Northrop, Mr. 
  Osborne, Mr. Lewis of Kentucky, Mr. Barrett of South Carolina, Mr. 
Ross, Mr. Hinchey, Mr. Baker, Mr. Bereuter, Mr. Forbes, Mr. Oxley, Mr. 
Nethercutt, Ms. Kaptur, Mrs. Myrick, Mr. Deal of Georgia, Mr. Skelton, 
   Mr. Spratt, Mr. Costello, Mr. Smith of Michigan, Mr. Tiberi, Mr. 
Ferguson, Mr. Green of Wisconsin, Mr. Hayes, Ms. Carson of Indiana, Ms. 
     DeLauro, Mr. Tiahrt, Mrs. Miller of Michigan, Mrs. Johnson of 
 Connecticut, Mr. Scott of Georgia, Mr. Shadegg, Mr. Turner of Texas, 
Mr. Linder, Mr. Rogers of Alabama, Mr. Berry, Mr. Simmons, Mr. Kennedy 
of Minnesota, Mr. Calvert, Mr. Gary G. Miller of California, Mr. Camp, 
Mr. McIntyre, Mr. Hoekstra, Mr. Taylor of North Carolina, Mr. Burgess, 
    Mr. Olver, Mr. Knollenberg, Mr. Latham, Ms. Eshoo, Mr. Ney, Mr. 
  Boehlert, Mr. Buyer, Mr. Toomey, Mr. Petri, Mr. Turner of Ohio, Mr. 
 Taylor of Mississippi, Mr. Doolittle, Mr. Culberson, Mr. Neugebauer, 
 Mr. Souder, Mr. Carter, Mr. Herger, Mr. Davis of Florida, Mr. Bachus, 
  Mr. Gonzalez, Mr. Akin, Mr. Johnson of Illinois, Mr. Etheridge, Ms. 
 Hart, Mr. Sandlin, Mr. Shuster, Mr. Collins, Mr. Hunter, Mr. Deutsch, 
   Mr. Walden of Oregon, Mr. Sam Johnson of Texas, Mr. Beauprez, Mr. 
  Quinn, Mr. Frelinghuysen, Mr. Ryun of Kansas, Mrs. Jo Ann Davis of 
Virginia, Mr. Rush, Mr. Goodlatte, Mr. Goode, Mr. Wicker, Mr. Cole, Mr. 
Cramer, Mr. Weldon of Florida, Mr. Price of North Carolina, Mr. Bradley 
 of New Hampshire, Mr. Hastings of Washington, Mr. Miller of Florida, 
 Mr. Boozman, Mr. Holden, Mr. Kirk, Mr. Hall, Ms. Majette, Mr. Putnam, 
 Mr. LaTourette, Mr. Wamp, Mr. Aderholt, Mr. Murphy, Mr. Sessions, Mr. 
  Wilson of South Carolina, Mr. Bonner, Mr. Smith of New Jersey, Ms. 
Roybal-Allard, Ms. Granger, Mr. Otter, Mr. Norwood, Mr. Pickering, Mr. 
 Shays, Mr. Simpson, Mr. Manzullo, Mr. Boyd, Mr. Kline, Mr. Stenholm, 
                         and Mr. King of Iowa.

                             March 9, 2004

Reported with amendments, committed to the Committee of the Whole House 
          on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on January 
                               21, 2004]

_______________________________________________________________________

                                 A BILL


 
   To increase the penalties for violations by television and radio 
   broadcasters of the prohibitions against transmission of obscene, 
                    indecent, and profane language.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``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.''.
                                                 Union Calendar No. 251

108th CONGRESS

  2d Session

                               H. R. 3717

                          [Report No. 108-434]

_______________________________________________________________________

                                 A BILL

   To increase the penalties for violations by television and radio 
   broadcasters of the prohibitions against transmission of obscene, 
                    indecent, and profane language.

_______________________________________________________________________

                             March 9, 2004

Reported with amendments, committed to the Committee of the Whole House 
          on the State of the Union, and ordered to be printed