Short title

This Act may be cited as the

Broadcast Decency Enforcement Act of 2005

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..

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.

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).

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.

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.

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 court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,

then the Commission shall, in any subsequent proceeding under section 308(b) or 310(d), take into consideration whether the broadcast of such material demonstrates a lack of character or other qualifications required to operate a station.

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 court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,

then such violation shall be treated as a serious violation for purposes of paragraph (1)(B) of this subsection with respect to the renewal of the license or permit for such station.

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 court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,

then the Commission shall commence a proceeding under subsection (a) of this section to consider whether the Commission should revoke the station 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).

10.

Required contents of annual reports of the Commission

Each calendar year beginning after the date of enactment of this Act, the Federal Communications Commission shall submit to the Congress an annual report that includes 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; and (D)the amount paid by the licensee. (8)In instances where the licensee has refused to pay, whether the Commission referred such order to the Department of Justice to collect the penalty. (9)In cases where the Commission referred such order to the Department of Justice— (A)the number of days from the date the Commission issued such order to the date the Commission referred such order to the Department; (B)whether the Department has commenced an action to collect the penalty, and if such action was commenced, the number of days from the date the Commission referred such order to the Department to the date the action by the Department commenced; and (C)whether the collection action resulted in a payment, and if such action resulted in a payment, the amount of such payment.

11.

Gao study of indecent broadcasting complaints

(a)

Inquiry and report required

The General Accounting Office shall conduct a study examining— (1)the number of complaints concerning the broadcasting of obscene, indecent, and profane material to the Federal Communications Commission; (2)the number of such complaints that result in final agency actions by the Commission; (3)the length of time taken by the Commission in responding to such complaints; (4)what mechanisms the Commission has established to receive, investigate, and respond to such complaints; and (5)whether complainants to the Commission are adequately informed by the Commission of the responses to their complaints. (b)

Submission of report

The General Accounting Office shall submit a report on the results of such study within one year after the date of enactment of this Act to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives.

12.

Sense of the Congress

(a)

Reinstatement of policy

It is the sense of the Congress that the broadcast television station licensees should reinstitute a family viewing policy for broadcasters. (b)

Definition

For purposes of this section, a family viewing policy is a policy similar to the policy that existed in the United States from 1975 to 1983, as part of the National Association of Broadcaster’s code of conduct for television, and that included the concept of a family viewing hour.

13.

Implementation

(a)

Regulations

The Commission shall prescribe regulations to implement the amendments made by this Act within 180 days after the date of enactment of this Act. (b)

Prospective application

This Act and the amendments made by this Act shall not apply with respect to material broadcast before the date of enactment of this Act. (c)

Separability

Section 708 of the Communications Act of 1934 (47 U.S.C. 608) shall apply to this Act and the amendments made by this Act.