1.
This Act may be cited as the
Indecent and Gratuitous and
Excessively Violent Programming Control Act of
2005
.
2.
Congress makes the following
findings:
(1)
Increasingly, parents, educators, and families are concerned
about the material that is broadcast on television and radio, and the effect
such material has on America’s children.
(2)
Television influences children’s perception of the values and
behavior that are common and acceptable in society.
(3)
Broadcast television, cable television, and video programming
are—
(A)
uniquely pervasive presences in the lives of all American
children; and
(B)
readily accessible to all American children.
(4)
85.1 percent of all American homes subscribe to multi-channel
video programming.
(5)
Complaints about indecent programming have grown exponentially in
the last five years.
(6)
In 2004, Americans filed over 1,000,000 complaints with the
Federal Communications Commission about indecent programming.
(7)
According to reports from the Parents Television Council,
indecent and violent video programming on cable television is pervasive.
(8)
Studies also show that parents are increasingly concerned.
According to the Kaiser Family Foundation, more than 4 out of 5 parents are
concerned that their children are being exposed to too much sex on
television.
(9)
Violent video programming influences children, as does, indecent
programming.
(10)
The American Association of Pediatrics, the American
Psychological Association, the American Medical Association, and the U.S.
Surgeon General have all documented the harm from watching excessive television
violence on children.
(11)
There is empirical evidence that children exposed to violent
video programming at a young age have a higher tendency to engage in violent
and aggressive behavior later in life than those children not so
exposed.
(12)
There is empirical evidence that children exposed to violent
video programming have a greater tendency to assume that acts of violence are
acceptable behavior and therefore to imitate such behavior.
(13)
There is empirical evidence that children exposed to violent
video programming have an increased fear of becoming a victim of violence,
resulting in increased self-protective behaviors and increased mistrust of
others.
(14)
There is a compelling governmental interest in limiting the
negative influences of violent video programming on children.
(15)
A significant amount of violent video programming that is readily
accessible to minors remains unrated specifically for violence and therefore
cannot be blocked solely on the basis of its violent content.
(16)
Age-based ratings that do not include content rating for violence
do not allow parents to block programming based solely on violent content
thereby rendering ineffective any technology-based blocking mechanism designed
to limit violent video programming.
(17)
Technology-based solutions, such as the V-chip, may be helpful in
protecting some children, but cannot achieve the compelling governmental
interest in protecting all children from violent video programming when parents
are only able to block programming that has, in fact, been rated for
violence.
(18)
Restricting the hours when violent video programming can be shown
to protect the interests of children whose parents are unavailable, unable to
supervise their children’s viewing behavior, do not have the benefit of
technology-based solutions, are unable to afford the costs of technology-based
solutions, or are unable to determine the content of those shows that are only
subject to age-based ratings.
(19)
After further study, pursuant to a rulemaking, the Federal
Communications Commission may conclude that content-based ratings and blocking
technology do not effectively protect children from the harm of violent video
programming.
(20)
If the Federal Communications Commission reaches the conclusion
described in paragraph (19), the channeling of violent video programming will
be the least restrictive means of limiting the exposure of children to the
harmful influences of violent video programming.
3.
As used in this Act:
(1)
The term Commission means the Federal Communications
Commission.
(2)
Multichannel video programming distributor
The term multichannel video programming distributor
has the same meaning given such term in section 602 of the
Communications Act of 1934 (47 U.S.C.
522).
(3)
Other programming service
The term other programming service has the same
meaning given such term in section 602 of the Communications Act of 1934 (47 U.S.C.
522).
4.
Effectiveness of measures protecting children from indecent and
violent video programming
(a)
The Commission shall assess—
(1)
the technological and practical effectiveness of statutory and
regulatory measures that require television broadcast station licensees and
multichannel video programming distributors to rate and encode programming that
could be blocked by parents, including use of the technology required by the
Commission’s Report and Order, ET Docket 97–206, under section 303(x) of the
Communications Act of 1934 (47 U.S.C.
303(x)), in accomplishing their intended purposes;
(2)
(A)
the prevalence of violent programming on television; and
(B)
the effectiveness of the current system for rating and encoding
violent television programming, including—
(i)
an assessment of consumer awareness of the current ratings
system; and
(ii)
an assessment of whether current ratings are self-administered or
performed by independent organizations; and
(3)
the technological and practical effectiveness of measures used by
multichannel video programming distributors to protect children from exposure
to—
(A)
indecent video programming; and
(B)
gratuitous and excessively violent video programming.
(b)
Not later than 60 days after the date of enactment of this Act
and annually thereafter, the Commission shall report its findings from the
assessments made under subsection (a) to the Committee on Commerce, Science,
and Transportation of the United States Senate and the Committee on Energy and
Commerce of the United States House of Representatives.
(c)
(1)
If the Commission determines, on the basis of an assessment under
subsection (a), that a measure described in subsection (a) is not effective in
protecting children from exposure to gratuitous and excessively violent video
programming on television broadcasts, or from exposure to indecent video
programming or gratuitous and excessively violent video programming carried by
multichannel video programming distributors, then the Commission shall initiate
and conclude (not later than 270 days after the date of that determination) a
rulemaking proceeding—
(A)
to prohibit television broadcast station licensees from
broadcasting gratuitous and excessively violent programming during the hours
when children are reasonably likely to comprise a substantial portion of the
audience if the Commission’s determination relates to measures applicable to
such broadcast television programming; or
(B)
to adopt measures to protect children from indecent video
programming, or gratuitous and excessively violent video programming, as the
case may be, carried by multichannel video programming distributors during the
hours when children are reasonably likely to comprise a substantial portion of
the audience if the Commission’s determination relates to measures applicable
to such multichannel video programming.
(2)
The Commission may exempt from any prohibition or measure
promulgated under paragraph (1)—
(A)
video programming the broadcast or carriage of which does not
conflict with the objective of protecting children from access to—
(i)
indecent programming; or
(ii)
gratuitous and excessively violent video programming; and
(B)
premium and pay-per-view services.
(d)
The forfeiture penalties established by section 503(b) of the
Communications Act of 1934 (47 U.S.C.
503(b)) shall apply to a violation of any regulation promulgated under
subsection (c) in the same manner as if it were a violation of a provision of
that Act subject to a forfeiture penalty under section 503 of that Act.
(e)
In this section:
(1)
Gratuitous and excessively violent video programming
The Commission shall define the term gratuitous and
excessively violent video programming for purposes of this section. In
defining it, the Commission—
(A)
may include matter that is excessive or gratuitous violence
within the meaning of the 1992 Broadcast Standards for the Depiction of
Violence in Television Programs, December, 1992; and
(B)
shall take into account the findings set forth in section 551(a)
of the Telecommunications Act of 1996 (47 U.S.C. 303 note).
(2)
Hours when children are reasonably likely to comprise a
substantial portion of the audience
The Commission shall define the term hours when children
are reasonably likely to comprise a substantial portion of the audience
for purposes of this section.
(3)
Indecent video programming
The Commission shall define the term indecent video
programming for purposes of this section.
(4)
Television broadcast station licensee
The term television broadcast station licensee means
the licensee or permittee of a television broadcast station licensed or
permitted by the Federal Communications Commission under title III of the
Communications Act of 1934 (47 U.S.C.
301 et seq.).
5.
Improved enforcement of indecency on broadcast
programming
(a)
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)
(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
(ii)
determined by the Commission under paragraph (1) to have
broadcast obscene, indecent, or profane language or images,
the
amount of any forfeiture penalty determined under this subsection shall not
exceed $500,000, with each utterance constituting a separate violation, except
that the amount assessed a licensee or permitee for any number of violations in
a given 24-hour time period shall not exceed a total of $3,000,000. In
determining the amount of any forfeiture penalty under this subparagraph, the
Commission, in addition to the elements identified in subparagraph (E), shall
take into account the violator’s ability to pay, including such factors as the
revenue and profits of the broadcast stations that aired the obscene, indecent,
or profane language and the size of the markets in which these stations are
located.;
and
(3)
in subparagraph (D), as redesignated by paragraph (1), by
striking subparagraph (A) or (B)
and inserting
subparagraph (A), (B), or (C)
.
(b)
Additional factors in indecency penalties; exception
Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C.
503(b)(2)), as amended by subsection (a) of this section, is amended by adding
at the end the following:
(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 with respect to
the degree of culpability of the violator:
(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 would 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.
(v)
The size of the market.
(vi)
Whether the violation occurred during a children’s television
program (as such term is used in the Children’s Television Programming Policy
referenced in section 73.4050(c) of the Commission’s regulations (47 C.F.R.
73.4050(c)) or during a television program rated TVY, TVY7, TVY7FV, or TVG
under the TV Parental Guidelines as such ratings were approved by the
Commission in implementation of section 551 of the Telecommunications Act of
1996, Video Programming Ratings, Report and Order, CS Docket No. 97–55, 13
F.C.C. Rcd. 8232 (1998)), and, with respect to a radio broadcast station
licensee, permittee, or applicant, whether the target audience was primarily
comprised of, or should reasonably have been expected to be primarily comprised
of, children.
(G)
The Commission may double the amount of any forfeiture penalty
if the Commission determines additional factors are present which are
aggravating in nature, including—
(i)
whether the material uttered by the violator was recorded or
scripted;
(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 would contain obscene, indecent, or profane
material;
(iii)
whether the violator failed to block live or unscripted
programming;
(iv)
whether the size of the viewing or listening audience of the
programming was substantially larger than usual, such as a national or
international championship sporting event or awards program; and
(v)
whether the violation occurred during a children’s television
program (as defined in subparagraph (F)(vi)).
(H)
For purposes of this section, the Commission shall have the
authority to impose a forfeiture penalty on any broadcast station (as defined
in section 153), network station, nationally distributed superstation, or
television network (as those terms are defined in section 339).
.
(c)
Public hearings for violations of indecency
prohibitions
Section 503 of the Communications
Act of 1934 (47 U.S.C. 503) is amended by adding at the end the
following new subsection:
(c)
Public hearings for violations of indecency
prohibitions
(1)
In any proceeding initiated under this section in which the
Commission issues a notice of apparent liability, but prior to its imposition
of a forfeiture penalty, the Commission or designees of the Commission shall
conduct public hearings or forums at the discretion of the Commission or its
designees, at any time and place the Commission or its designees is able to
secure facilities and witnesses, for the purpose of carrying out the duties of
the Commission and to ascertain the concerns and interests of the affected
viewing communities exposed to the broadcast.
(2)
If a broadcast results in the initiation of multiple
proceedings and the issuance of multiple notices of apparent liability, but
prior to the imposition of multiple forfeiture penalties, the Commission or its
designee may combine the hearings required under paragraph (1).
.
6.
Local broadcasting authority to preempt programming
Part I of title III of the
Communications Act of 1934 (47 U.S.C.
301 et seq.) is amended by adding at the end the following:
340.
Local broadcasting authority to preempt programming deemed
obscene or indecent
(a)
Local broadcaster ability to review programming in
advance
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 be
given reasonable opportunity to review all recorded or scripted programming in
advance.
(b)
A broadcast station licensee or permittee described in
subsection (a)—
(1)
may decide not to broadcast, or otherwise preempt, in whole or
in part and without penalty, any programming that it reasonably believes
depicts or describes—
(A)
obscene, indecent, profane, or gratuitous and excessively
violent material; or
(B)
activities that would be patently offensive as measured by the
community standards of the community in which they operate; and
(2)
shall notify, in advance, the network organization of any
decision not to broadcast, or otherwise preempt, any programming under
paragraph (1).
(c)
A broadcast station licensee or permittee described in
subsection (a) shall not be subject to a forfeiture penalty under section
503(b)(2) for the broadcast of a program found to be in violation of section
503(b)(1), if the broadcast station licensee or permittee prior to such
broadcast was—
(1)
required by a network organization to broadcast the program
which was recorded or scripted, regardless of such broadcast station licensee
or permittee’s decision not to broadcast, or otherwise preempt, the program
under subsection (b);
(2)
not provided a reasonable opportunity to review the program;
or
(3)
required to broadcast the program which was unscripted, live,
or otherwise presented without a time delay blocking mechanism.
(d)
Nothing in this section shall preclude the imposition of a
forfeiture penalty under section 503(b)(2) against a network organization or
its owned and operated affiliate.
(e)
The Commission shall by rule define the term network
organization for purposes of this section.
.
7.
Warnings based on content of programming
Part I of title III of the
Communications Act of 1934 (47 U.S.C.
301 et seq.), as amended by section 6, is amended by adding at the end the
following:
341.
Warnings based on content of programming
(a)
Each television and radio broadcast licensee, multichannel
video programming distributor, or other programming service shall provide a
warning of the specific content of each recorded or scripted program it
broadcasts.
(b)
A warning provided under subsection (a) shall—
(1)
include information regarding the language content, sexual
content, and violence content of the program to be broadcast or distributed;
and
(2)
be broadcast or distributed so as—
(A)
to appear in both visible and audible form;
(B)
to appear full screen for 30 seconds at the beginning of the
program, and every 30 minutes thereafter in the case of a program in excess of
30 minutes in length; and
(C)
to advise viewers of their ability to block any such program,
including programs containing gratuitous and excessively violent material,
using V-chip technology to block display of programs with a common rating
required under subsection (x) of section 303.
(c)
The Commission shall, from time to time, review the warnings on
the content of broadcast programming required under this section for the
purpose of assuring that such warnings meet the requirements of this
section.
(d)
As used in this section, the terms multichannel video
programming distributor and other programming service have
the same meaning given such terms in section 602.
(e)
Nothing in this section shall be deemed or construed to
relieve, preclude, or obviate the application of the ratings standards set
forth in the TV Parental Guidelines (Video Programming Ratings, Report and
Order, CS Docket No. 97–55, 13 F.C.C. Rcd. 8232 (1998)) as such voluntary
ratings were established by the National Association of Broadcasters, the
National Cable Television Association, and the Motion Picture Association of
America and approved by the Commission in implementation of section 551.
.
8.
Assessment of the effectiveness of voluntary rating
standards
The Commission shall—
(1)
assess the effectiveness of measures designed to provide parents
with timely information about the rating of upcoming broadcast programming
under the TV Parental Guidelines (Video Programming Ratings, Report and Order,
CS Docket No. 97–55, 13 F.C.C. Rcd. 8232 (1998)) as such voluntary ratings were
established by the National Association of Broadcasters, the National Cable
Television Association, and the Motion Picture Association of America and
approved by the Commission in implementation of section 551 of the
Telecommunications Act of 1996;
(2)
assess the technical feasibility of developing ratings systems
from alternative sources; and
(3)
not later than 180 days after the date of enactment of this Act,
report its findings based on the assessment under paragraphs (1) and (2) to the
Committee on Commerce, Science, and Transportation of the United States Senate
and the Committee on Energy and Commerce of the United States House of
Representatives.
9.
Children’s programming requirements
(a)
Increase in amount of educational and informational programming
for children
(1)
Not later than 180 days after the date of the enactment of this
Act, the Commission shall promulgate regulations in accordance with section
102(a) of the Children’s Television Act of 1990 (47 U.S.C. 303a(a)), to require
that each television broadcast licensee broadcast not less than 6 hours of
programming specifically designed to serve the educational and informational
needs of children during hours when children are reasonably likely to comprise
a substantial portion of the audience.
(2)
Proportional increase for digital television
multicasts
In response to the requirements of section 309(j)(14), the
Commission shall promulgate regulations in accordance with section 102(a) of
the Children’s Television Act of 1990 (47 U.S.C. 303a(a)), to require each
television broadcast licensee providing digital multicasts to provide an amount
of time to broadcast programming specifically designed to serve the educational
and informational needs of children during hours when children are reasonably
likely to comprise a substantial portion of the audience in the same ratio to
its total amount of time provided to such children’s programming on its main
stream under paragraph (1) bears to the total amount of time provided to all
programming during the hours when children are reasonably likely to comprise a
substantial portion of the audience.
(b)
The Commission shall amend its regulations to require each
television broadcast licensee to file, regularly, a report on how it met, for
the year in review, its obligations to serve the educational and informational
needs of children in accordance with section 102(a) of the Children’s
Television Act of 1990 (47 U.S.C. 303a(a)).
(c)
The Commission shall amend its regulations to require each
television broadcast licensee for which there is a publicly accessible website
on the Internet—
(1)
to make its report available to the public on that website;
or
(2)
to provide a hyperlink on that website to the report on the
Commission’s website.
10.
Reinstatement of voluntary code of conduct
(a)
Voluntary industry code of conduct governing content of
broadcast programming
It is the sense of the Congress that each television and radio
broadcast licensee, multichannel video programming distributor, or other
programming service should reinstitute or adopt, as the case may be, and
faithfully comply with, the provisions set forth in the Television Code
of the National Association of Broadcasters
as adopted on December 6,
1951, with amendments thereafter, by the Television Board of the National
Association of Broadcasters, formerly known as the National Association of
Radio and Television Broadcasters.
(b)
(1)
The antitrust laws as defined in subsection (a) of the first
section of the Clayton Act (15 U.S.C.
12) and the law of unfair competition under section 5 of the
Federal Trade Commission Act (15
U.S.C. 45) shall not apply to any joint discussion, consideration, review,
action, or agreement by or among television and radio broadcast licensees,
multichannel video programming distributors, or other programming services for
the purpose of, and limited to, developing and disseminating voluntary
guidelines designed to provide a code of conduct regarding the content of
broadcast programs.
(2)
The exemption provided for in this subsection shall not apply to
any joint discussion, consideration, review, action, or agreement which results
in a boycott of any person, corporation, advertiser, or industry.
11.
Premium and pay-per-view channels exempt
(a)
Nothing in this Act shall be deemed or construed to apply to any
premium or pay-per-view service.
(b)
For the purpose of this section, the term premium or
pay-per-view service shall mean any video programming provided by a
multichannel video programming distributor that is offered on a per channel or
per program basis.