[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 310 Placed on Calendar Senate (PCS)]

                                                        Calendar No. 17
109th CONGRESS
  1st Session
                                H. R. 310


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 16, 2005

                                Received

                           February 17, 2005

                          Read the first time

                           February 18, 2005

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 AN ACT


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

    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 
2005''.

SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, AND PROFANE 
              BROADCASTS.

    Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 
503(b)(2)) is amended--
            (1) by redesignating subparagraphs (C) and (D) as 
        subparagraphs (D) and (E), respectively;
            (2) by inserting after subparagraph (B) the 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;
                    ``(II) if the violator is a company, the size of 
                the company and the size of the market served; and
                    ``(III) if the violator is an individual, the 
                financial impact of a forfeiture penalty on that 
                individual.
    ``(G) A broadcast station licensee or permittee that receives 
programming from a network organization, but that is not owned or 
controlled, or under common 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 and intentionally made the utterance, 
                knowing or having reason to know that the utterance 
                would be broadcast''; 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 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.''.

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 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.''.

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 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).''.

SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF THE COMMISSION.

    (a) Required Contents.--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 years 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 years 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 years 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 years 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.
    (b) Years Covered.--For purposes of this section, the ``years 
covered'' by the report required under this section shall be the years 
beginning with calendar year 2000 through the calendar year preceding 
the year in which the report is submitted.

SEC. 11. UPDATING GUIDANCE TO THE BROADCAST INDUSTRY REGARDING 
              INDECENCY.

    Within 9 months after the date of enactment of this Act, and at 
least once every 3 years thereafter, the Federal Communications 
Commission shall revise, on the basis of recent developments in the 
Commission indecency case law, the Commission's policy statement to 
provide industry guidance on the Commission's interpretation of, and 
enforcement policies regarding, the laws and regulations concerning 
broadcast indecency, as contained in the policy statement adopted March 
14, 2001, and released April 6, 2001 (FCC 01-90).

SEC. 12. GAO STUDY OF INDECENT BROADCASTING COMPLAINTS.

    (a) Inquiry and Report Required.--The Government Accountability 
Office shall conduct a study examining, with respect to calendar year 
2000 through the calendar year preceding the year in which the report 
is submitted--
            (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 Government Accountability 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.

SEC. 13. 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. 14. 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.

            Passed the House of Representatives February 16, 2005.

            Attest:

                                                 JEFF TRANDAHL,

                                                                 Clerk.




                                                        Calendar No. 17

109th CONGRESS

  1st Session

                               H. R. 310

_______________________________________________________________________

                                 AN ACT

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

_______________________________________________________________________

                           February 18, 2005

            Read the second time and placed on the calendar