[Senate Prints 111-33]
[From the U.S. Government Publishing Office]


111th Congress  }                                          {    S. Prt.
  1st Session   }          COMMITTEE PRINT                 {     111-33
_______________________________________________________________________

 
               GUIDE FOR PREPARATION OF COMMITTEE REPORTS 

                               ________

                        FOR THE USE OF THE STAFF

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                               ---------

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               November 9, 2009.--Ordered to be printed
       
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           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             first session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas                 DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           SAM BROWNBACK, Kansas
AMY KLOBUCHAR, Minnesota             MEL MARTINEZ, Florida
TOM UDALL, Colorado                  MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Chief of Staff
                   James Reid, Deputy Chief of Staff
                     Bruce Andrews, General Counsel
             Ann Begeman, Acting Republican Staff Director
               Brian Hendricks, Republican Chief Counsel
                Todd Bertoson, Republican Senior Counsel








                           [COMMITTEE PRINT]

111th Congress   }                                           {  
  1st Session    }             SENATE                        {   111-33
                                                      
=======================================================================

               GUIDE FOR PREPARATION OF COMMITTEE REPORTS

                                _______
                                

                November 9, 2009.--Ordered to be printed

                                _______
                                

                           TABLE OF CONTENTS

Introduction..........................................................1
Essential Components of a Committee Report............................3
Purpose of Bill.......................................................4
Background and Needs..................................................6
Legislative History..................................................13
Summary of Major Provisions..........................................17
Estimated Costs......................................................20
Regulatory Impact Statement..........................................25
Congressionally Directed Spending....................................29
Section-by-Section Analysis..........................................32
Votes in Committee...................................................38
Agency Comments......................................................42
Supplemental, Minority, and Additional Views.........................43
Changes in Existing Law..............................................49
Very Long or Very Short Measures.....................................54
Review and Filing of Report..........................................79
Things To Avoid......................................................82
A Few Matters of Style...............................................83
Appendix: How To Introduce a Bill....................................85

                              INTRODUCTION

    While the Standing Rules of the Senate do not require a 
standing committee to file a written report accompanying a bill 
or resolution reported by the committee, it has been the 
practice of the Committee on Commerce, Science, and 
Transportation to submit a written report whenever the 
Committee files a reported bill or resolution. This practice 
has applied equally to the reporting of bills and resolutions 
referred to the committee and to original bills or resolutions 
reported by the committee.
    Paragraph 4(a) of rule XVII of the Standing Rules of the 
Senate requires that any report filed by a committee lie over 1 
day for consideration. The 1-day layover rule can be waived by 
unanimous consent. Paragraph 5 provides that any bill or 
resolution reported by a standing committee may not be 
considered in the Senate unless the reported bill or resolution 
has been available to Senators for at least 2 calendar days 
(excluding Sundays and legal holidays) before it is considered. 
The 2-day availability rule can be waived by mutual agreement 
of the Majority Leader and the Minority Leader, or, presumably, 
by unanimous consent.
    A committee report does not have the force of law, but it 
is useful as a way of providing guidance to an administering 
officer, agency, or other interested party with respect to the 
manner in which a law, or a change in existing law, is to be 
implemented or enforced. In addition, the courts frequently 
refer to committee reports, as an important component of the 
legislative history of a statute, in interpreting provisions of 
law that may be ambiguous or the application of which to a 
particular set of circumstances is not clear on the face of the 
statute.
    This guide has been written to assist the staff in the 
preparation of committee reports that contain the elements 
required by the Standing Rules of the Senate and that are 
consistent in format and style. It is intended also to provide 
guidance with respect to circumstances in which deviation from 
the standard format, or the inclusion of optional components, 
may be appropriate.

               ESSENTIAL COMPONENTS OF A COMMITTEE REPORT

    Except as noted in the detailed discussion of each 
component listed below, each committee report should include 
the following components in the following order:
         Purpose of the Bill
         Background and Needs
         Summary of Provisions
         Legislative History
         Estimated Costs
         Regulatory Impact Statement
         Congressionally Directed Spending
         Section-by-Section Analysis
         Rollcall Votes in Committee
         Additional, Supplemental, or Minority Views
         Changes in Existing Law
    Note: The parts of the report that precede the purpose-of-
the-bill component are prepared by the Committee's Legislative 
Counsel. This includes the front page, the member and staff 
roster on the next page, and the head and introductory 
paragraph \1\ that precedes the purpose of the bill.
-----------------------------------------------------------------------
    \1\ The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
H.R. deg. ------) TITLE deg. to . . ., having 
considered the same, reports favorably thereon [without amendment or  
with amendments or with an amendment (in the nature of a substitute)] 
and recommends that the bill joint resolution deg. [(as 
amended)] do pass. The matter in black brackets should reflect the 
Committee's action on the measure.

                          PURPOSE OF THE BILL

    This section of the report is intended to inform the 
reader, as quickly and simply as possible, of the main thrust 
of the reported bill. This can usually be accomplished in a 
single sentence for a simple measure and no more than 3 to 5 
sentences for a lengthy or complex measure.
    The most common mistake in writing this section is to make 
it too long. Bear in mind that this section contains the first 
few sentences of the report, and the objective is to give the 
reader a quick overview of the subject matter of the bill. Save 
any detailed descriptions of the legislation, as well as 
arguments as to the need for the legislation, for later 
sections of the report.

                                EXAMPLES

    The purpose of the Air Cargo Security Improvement Act, S. 
165, as reported, is to enhance the security of cargo 
transported by air, particularly aboard passenger aircraft.

           *       *       *       *       *       *       *

    The purpose of S. 886, the National Oceanic and Atmospheric 
Administration (NOAA) Corps Confirmation Correction 
Legislation, is to ratify the otherwise legal appointments and 
promotions in the commissioned corps of NOAA that failed to be 
submitted to the Senate for its advice and consent as required 
by law.

           *       *       *       *       *       *       *

    The purpose of this legislation, as reported, is to 
reauthorize the United States Fire Administration (USFA) for 
fiscal years (FYs) 2004 through FY 2008, and re-establish the 
position of Administrator of the USFA. The legislation also 
would establish and authorize funding for programs under the 
USFA to support the development of voluntary consensus 
standards for new firefighting technology, improve coordination 
between Federal, State, and local fire officials, and authorize 
the National Fire Academy to train firefighters to respond to 
acts of terrorism.

           *       *       *       *       *       *       *

    S. 1234 would amend the Federal Trade Commission Act (FTCA) 
(15 U.S.C. 41 et seq.) to carry out the functions, powers, and 
duties of the Federal Trade Commission (FTC or Commission). The 
bill would authorize funding levels to be appropriated for 
fiscal years 2004 through 2007, as well as authorize the FTC to 
accept both reimbursement from other agencies that may seek the 
Commission's assistance, and gifts that do not create a 
conflict of interest. The bill also would improve the 
Commission's ability to provide more timely and effective 
international consumer protection.

           *       *       *       *       *       *       *

    The purpose of this legislation is to amend section 332(c) 
of the Communications Act of 1934 (47 U.S.C. 332(c)) by adding 
a new paragraph (9) to: (1) require providers of wireless 
directory assistance services to obtain the express prior 
authorization of a subscriber before listing his or her 
wireless telephone number in a directory assistance database; 
(2) require such providers to remove the wireless telephone 
number of any subscriber from any directory assistance database 
upon request and without any charge to the subscriber; (3) 
require telecommunications carriers to avoid disclosing on 
their customer bills any wireless telephone numbers of 
consumers who have indicated such a preference to their 
wireless carriers; (4) prohibit the publishing (in printed, 
electronic, or other form), sale, or other dissemination of a 
wireless telephone number without consent; and (5) prohibit 
wireless directory assistance providers from charging consumers 
for exercising any of their rights provided under this 
legislation.

                          BACKGROUND AND NEEDS

    This section of the report should set forth a concise 
summary of why the legislation is necessary or desirable. It 
often contains a brief description of an existing problem, the 
inadequacies of current programs or law in dealing with the 
problem, and the need to address the problem through new 
legislation by modifying the current law applicable to the 
circumstances that create the problem. Except for a lengthy, 
complex, or controversial bill, a few short paragraphs may 
suffice.
    An effort should be made here, also, to keep the written 
matter as concise and to-the-point as possible, consistent with 
providing an overview of what problem the bill is intended to 
address and how it proposes to address that problem.

                                EXAMPLES

    The NOAA Corps is the smallest of the seven uniformed 
services of the United States (the others are the four 
Department of Defense services, the Coast Guard, and the Public 
Health Service). The NOAA Corps is comprised of slightly over 
250 commissioned officers and operates a wide variety of 
specialized aircraft and ships used to conduct NOAA's 
environmental and scientific missions. Its commissioned 
officers provide NOAA with an important blend of operational, 
management, and technical skills that support the agency's 
science and surveying programs at sea, in the air, and ashore. 
Corps officers operate and manage NOAA's ships and aircraft as 
well as serve in the agency's research laboratories and program 
offices throughout the nation and in remote locations around 
the world.
    The NOAA Corps officer appointments and promotions are 
similar to the other uniformed services and, under section 226 
of the National Oceanic and Atmospheric Administration 
Commissioned Officer Corps Act of 2002 (33 U.S.C. 3026) and its 
antecedent, require nomination by the President and must be 
submitted to the Senate for its advice and consent. 
Historically, the Commerce Committee has considered NOAA 
promotions, along with routine Coast Guard officer promotions, 
during Full Committee Executive Sessions.
    It recently came to the Committee's attention that NOAA has 
failed since October 1, 1999, to submit any of its NOAA Corps 
officer appointments and promotions to the President for 
nomination and subsequently to the Senate for its advice and 
consent. Since then, the NOAA Corps has made approximately 251 
appointments and promotions, involving approximately 196 
officers. An ongoing Department of Commerce investigation 
indicates these procedural problems may have existed prior to 
October 1, 1999, and additional officers' appointments and 
promotions may also be affected. These revelations raise 
serious questions concerning the validity of these appointments 
and promotions that could affect each individual officer's pay, 
entitlements, job status, and the ability to carry out the 
officer's official actions.
    To address this serious situation, the legislation is 
designed to provide a framework for retroactive appointments 
and promotions for the affected officers in a manner that will 
protect the professional and financial aspects of their 
positions, and that will ensure that all past actions taken in 
the line of duty by such officers after their appointments and/
or promotions are considered to have been official actions. The 
bill states that all actions performed in the line of duty by 
these NOAA corps officers are ratified and approved. In 
addition, the legislation states that all Federal agency 
actions (with respect to pay, benefits, and retirement) in 
relation to an unconfirmed NOAA corps officer shall be 
considered legally binding.
    The bill provides that the President, acting alone, can 
make appointments and promotions for up to 180 days to allow 
these officers to maintain their status until the full Senate 
gives its advice and consent for these appointments and 
promotions going forward. Once this bill is enacted into law, 
the Administration is expected to submit the list of these 
officers to the Senate for its advice and consent.

           *       *       *       *       *       *       *

    Today, there are approximately 140 million wireless 
telephones in use in the United States. Several studies over 
the last decade have shown that most consumers cite safety and 
security (including the ability to communicate in an emergency) 
as their main reason for purchasing a cell phone. Even if their 
own lives are not affected, many Americans have indicated they 
are willing to be ``Good Samaritans'' and use their wireless 
phones to report emergencies to local public safety authorities 
when they see them occurring. Of the approximately 200 million 
calls placed to 911 each year, more than 56 million, or 28 
percent, of the calls are made from wireless phones. Some 
metropolitan areas show even higher percentages of wireless 911 
calls than the nationwide average, with several receiving a 
majority of their 911 calls from wireless phones.
    Unlike calls to 911 from land-based wireline telephones, 
most public safety operators answering wireless 911 calls do 
not have information regarding the name, telephone number, and 
location of the caller -- referred to as enhanced 911 (E-911) 
services. Without this information, emergency response times 
may be delayed while the operators attempt to determine the 
location of the emergency. In many instances, wireless 911 
callers do not know their exact location (particularly in rural 
areas), and some who are injured or disoriented cannot respond 
to operators' questions regarding their location. Medical 
emergency and public safety responders speak of a ``golden 
hour'' -- the first hour after serious injury when there is the 
greatest chance of saving life. As time elapses, chances of 
survival diminish and the severity of injuries increase. Prompt 
and accurate location information -- especially from the 
increasing numbers of wireless 911 calls -- is therefore 
critical to delivering emergency assistance to victims within 
the first hour.

IMPLEMENTATION PROBLEMS
    Successful wireless E-911 implementation requires the 
cooperation of three discrete groups: wireless carriers, 
wireline telephone companies (also known as local exchange 
carriers), and Public Safety Answering Points (PSAPs). A PSAP 
is the emergency operator dispatch point that receives 911 
calls for a community. There are approximately 6,100 PSAPs 
nationwide. In short, the wireless carrier must be able to 
determine the location of the caller, the local exchange 
carrier must carry that location information from the carrier 
to the PSAP, and the PSAP must be capable of receiving such 
information. In many ways, the initiation of wireless E-911 
implementation begins with the PSAP, because no other 
obligations are imposed on any other party until the PSAP 
submits a request for E-911 service.
    It is estimated that only 10 percent of the PSAPs 
nationwide have made requests to receive wireless E-911 
location information (known as ``Phase II'' requests). One 
major reason for the delay in PSAP requests is that PSAPs are 
not ready to receive the E-911 information that will be sent to 
them by wireless carriers. In order to receive this 
information, PSAPs must first make software and hardware 
upgrades in their operations centers, as well as make 
appropriate trunking arrangements with local wireline telephone 
companies to enable wireless E-911 data to pass from the 
wireless carrier to the PSAP. As required by the FCC, however, 
PSAPs also must have the means of covering their costs in order 
to make a valid request to the wireless carrier for E-911 
service. Absent a valid PSAP request, a wireless carrier is 
under no obligation to deploy E-911 services.

STATE FUNDING PROBLEMS
    The FCC's rules do not mandate any specific State action 
nor specify any particular mechanism for funding the technology 
and service capabilities necessary to enable the PSAP to make a 
valid service request. Some PSAPs are able to fund upgrades 
from existing State budgets, but most PSAPs must rely on funds 
collected pursuant to State authority for public safety 
services. Currently, over 40 States have established some type 
of wireless fee or surcharge on consumers' mobile phone bills 
to fund, either in whole or in part, PSAP upgrades for wireless 
E-911 service. In the States relying on monthly surcharges, 
subscribers' fees range from 20 cents to $2 per month, with the 
average about 60 cents per month. \1\ In many States, however, 
State laws do not specifically limit the use of wireless E-911 
surcharges to wireless E-911 upgrades. These States' surcharges 
can be used for other public safety purposes if not spent on 
wireless E-911.
---------------------------------------------------------------------------
    \1\  NENA Fact Sheet: Enhanced Wireless Emergency Communications: 
Implementation Process and Status, National Emergency Number 
Association (NENA), October 2001.
---------------------------------------------------------------------------
    Recently, State lawmakers and administrators have begun 
investigating the use of E-911 funds, and have discovered 
instances in which E-911 funds have been used for purposes 
other than the provision of E-911 service. Observers claim as 
many as 11 States have been ``raiding'' their collected E-911 
funds to satisfy other State obligations. In New York, for 
example, nearly $200 million collected as E-911 surcharges have 
been diverted for other public safety purposes, while the 
State's PSAPs have remained underfunded and unready to request 
E-911 service from carriers. Although State administrators 
supporting these diversions argue that their decisions are 
justified given more pressing State funding needs, 
investigators also have found some egregious examples of such 
funds being used to cover expenses for dry cleaning and lawn 
mowing services for State police (e.g., New York).

           *       *       *       *       *       *       *

    Congress formed the United States Olympic Association 
(USOA) in 1950 under the ``Act to Incorporate the United States 
Olympic Association.'' In 1964, the USOA was modified and 
became the USOC. Additional modifications to the USOC resulted 
from a study conducted by President Gerald Ford's Commission on 
Olympic Sports (Ford Commission). From 1975 to 1977, the Ford 
Commission evaluated each Olympic sport and determined how to 
correct factional disputes between the sports. Senator Stevens, 
who served on the Ford Commission, sponsored what later became 
known as the Ted Stevens Olympic and Amateur Sports Act, which 
was enacted in 1978 (the Act). The Act named the USOC as the 
central coordinating organization for athletes and sports of 
the Olympic and Pan-American Games.
    In its current form, the USOC performs a variety of 
functions. It provides financial, educational, training, and 
medical support for Olympic athletes. The USOC receives no 
permanent funding from the government. Though the 1978 charter 
granted the USOC several million dollars in seed money, the 
funds were never appropriated. \1\ Thus, the USOC supports its 
activities primarily through corporate sponsorship and 
licensing agreements for the rights to broadcast Olympic 
events. The USOC's current annual revenue is approximately $125 
million.
---------------------------------------------------------------------------
    \1\  In 1981, the USOC did receive a one-time appropriation from 
Congress of $10 million to compensate the USOC for lost revenue caused 
by the United States' boycott of the 1980 Olympic Games in Moscow.
---------------------------------------------------------------------------
    The USOC is often criticized for being an unwieldy 
bureaucracy with a board of directors comprised of 124 members, 
and for being the subject of too many scandals. Some examples 
of scandals include, in 1980, 25 athletes sued the USOC for 
boycotting the 1980 Games, claiming that the USOC had violated 
their constitutional rights. In the early 1990s, the Committee 
was accused of buying out two USOC officials in order to hire a 
new USOC executive director. In 1991, the resignation of then-
USOC President Robert Helmick forced the USOC's special counsel 
to admit certain ethical problems with Helmick's leadership. 
And, in an effort to secure the selection to host the 2002 
Winter Games in Salt Lake City, Utah, local organizing 
committee members were accused of taking bribes.
    Earlier this year, the USOC was again the subject of public 
embarrassment when then-USOC CEO Lloyd Ward became the subject 
of a USOC Ethics Committee investigation for a possible 
conflict-of-interest violation. The investigation was rumored 
to be the result of tension between Mr. Ward and the former 
USOC president, Marty Mankamyer. The Ethics Committee 
determined that Mr. Ward (a former CEO of Maytag) had committed 
two ``technical violations'' of the USOC's ethics code, and 
indicated to the Executive Committee that the problems could 
have been remedied through timely ethical compliance 
counseling. In the end, it was the Executive Committee that 
decided that the only punitive action to be taken against Mr. 
Ward would be the reduction of Mr. Ward's annual bonus by 
several hundred thousand dollars. In an act of protest of the 
Ethics Committee's decision, Executive Committee member Brian 
Derwin, Chief Ethics Compliance Officer, Patrick Rodgers, and 
three members of the 10-person Ethics Committee resigned their 
volunteer posts. Less than one month later, Ms. Mankamyer 
succumbed to intense USOC pressure to resign. The same pressure 
forced Lloyd Ward to resign on March 1, 2003.

           *       *       *       *       *       *       *

    On November 16, 2001, Congress passed the Aviation and 
Transportation Security Act (ATSA) in response to the terrorist 
attacks on September 11th of that year. The Act, which was 
signed into law on November 19, 2001, implemented a new regime 
for aviation security and created the Transportation Security 
Administration (TSA) within the Department of Transportation 
(DOT) to oversee security for all modes of transportation. The 
TSA has since been transferred to the Department of Homeland 
Security (DHS). ATSA (P.L. 107-71) contained numerous 
provisions and deadlines designed to increase aviation security 
targeted at the safety and security of airline passengers.
    With respect to the security of air cargo, ATSA contained 
two key provisions. The first dealt with passenger aircraft and 
required that the TSA provide for the screening of all cargo 
and mail that will be carried aboard such aircraft (section 
110). Almost all passenger flights carry cargo alongside 
luggage in the belly of the plane. Such cargo can encompass 
anything from pallets of computer chips to refrigerated cartons 
of chicken. According to a Federal Aviation Administration 
(FAA) estimate, approximately 22 percent of all air cargo 
loaded in the United States in 2000 was carried on passenger 
flights.
    ATSA required that all checked airline bags be screened by 
explosive detection systems by December 31, 2002, which was 
later extended to 2003 for a limited number of airports. A 
similar timetable was not specified for screening cargo.
    The second provision required that a system must be in 
operation as soon as practicable after the date of enactment of 
ATSA (section 10), to screen, inspect, or otherwise ensure the 
security of all cargo that is to be transported in all-cargo 
aircraft .

                 I. ACTIVITY BEFORE SEPTEMBER 11, 2001

    The air cargo system involves numerous participants that 
all require some level of security oversight. Typically, a 
shipper takes packages to an indirect air carrier (IAC, also 
known as a freight forwarder). An IAC is defined as any person 
or entity, excluding an air carrier, that engages indirectly in 
the transportation of property by air, and uses the services of 
a passenger air carrier. This does not include the United 
States Postal Service. The IAC may consolidate packages from 
many shippers into single containers. The IAC then uses trucks, 
either its own or hired, to deliver the bulk freight to air 
carriers for transport.
    Before the attacks of September 11, 2001, the FAA was 
generally responsible for oversight of civil aviation security. 
The bombing of Pan Am Flight 103 in 1988 led to the passage of 
the Aviation Security Improvement Act of 1990, which required 
the FAA to begin an accelerated 18-month research and 
development effort to find an effective explosives detection 
system to screen baggage and cargo. Following the 1996 crashes 
of ValuJet flight 592 and TWA flight 800, the White House 
Commission on Aviation Safety and Security was created to 
assess vulnerabilities of safety and security confronting 
aviation. The Commission recommended that the FAA implement a 
comprehensive plan to address the threat of explosives and 
other threatening objects in cargo and to work with industry to 
develop new initiatives in this endeavor. The FAA subsequently 
created Federal and industry partnerships, the Baseline Working 
Group, and later, the Cargo Working Group, to find ways improve 
air cargo security.
    Under the FAA's program, front-line responsibility for 
screening air cargo fell on two groups: the carriers and IACs. 
Both were required to adopt and carry out FAA-approved security 
programs.
    The key element of FAA's cargo security program before 
September 11, 2001, was the Known Shipper Program. A known 
shipper is essentially one that has an established reputation 
and thus is ``known'' to the industry and to the FAA. This 
program allowed an air carrier or IAC to transport a package 
from a known shipper with no more screening than an examination 
of its exterior. Packages from unknown shippers would be 
screened by X-ray or physically inspected before being placed 
aboard a passenger aircraft. Under the FAA's cargo security 
program, IACs were not allowed to accept packages from unknown 
shippers. If the IAC does not have an existing relationship 
with the business that seeks to ship goods, it must follow 
established regulations to ensure the company is a trustworthy 
business. The FAA's security oversight and implementation 
responsibility of the Known Shipper Program was transferred 
through ATSA to the TSA.
    Before September 11, 2001, the DOT Inspector General (IG) 
had been conducting tests of cargo security. The IG found that 
air carriers and indirect air carriers were not always 
complying with the FAA's Known Shipper Program, and that the 
FAA had not developed and implemented an adequate policy or 
oversight system to ensure compliance.

                  II. ACTIONS SINCE SEPTEMBER 11, 2001

    A number of important changes were implemented after 
September 11, 2001, regarding the shipment of cargo on 
passenger air carriers. These changes included the requirement 
that only cargo from known shippers could be accepted on 
passenger air carriers and all cargo from unknown shippers and 
mail weighing more than 16 ounces had to be diverted to all-
cargo air carriers.
    The Known Shipper Program continues to be TSA's primary 
means of compliance with ATSA screening mandates today. 
According to the agency, it has strengthened the process 
through which a shipper becomes ``known''. The TSA has 
developed a national database of known shippers and is re-
validating every business in the known shipper program.
    Many of the other changes implemented by TSA are sensitive 
or classified information.

                   III. AIR CARGO ISSUES AND CONCERNS

    The IG has expressed some concerns that the TSA's cargo 
security program is continuing to rely on the Known Shipper 
Program, which has weaknesses, and that very little cargo is 
actually screened. The IG believes that TSA must reevaluate its 
program to determine whether current procedures should be 
retained, identify new principles and controls that should be 
added, and develop a strategic plan to screen all cargo. The IG 
also is recommending that, until screening of all cargo is 
feasible, TSA develop and implement a plan for random screening 
of cargo using x-ray, canines, or explosives detection 
equipment. In addition, the IG advocates a requirement that a 
provider of cargo transportation lose its certification when 
TSA inspections and testing have continuously found the 
provider in noncompliance with cargo security requirements.
    The size and nature of air cargo can vary widely. Airlines 
are financially dependent on cargo, which carries higher profit 
margins than passenger traffic. One of the key problems with 
any attempt to screen all cargo on passenger aircraft at this 
time is that any type of physical inspection or electronic 
screening would be extremely expensive and time-consuming. Some 
industry observers believe that any changes causing additional 
expense or delay to the air cargo system could cause widespread 
disruption to United States businesses, which have grown 
dependent on moving goods rapidly, as well as creating further 
financial difficulties for the troubled United States airline 
industry.

                          LEGISLATIVE HISTORY

    This section of the report should set forth a concise 
legislative history of the bill as reported. That history would 
typically include the sponsor, an up-to-date list of cosponsors 
(some of whom may have been added after the introduced bill was 
printed), the date of introduction, any hearings on the bill 
held by the committee, and the executive session at which it 
was considered by the committee. It may also contain a 
statement with respect to companion bills introduced in the 
House of Representatives and a discussion of similar bills, 
including a description of any action taken with respect to 
such other bills.
    Note that any rollcall votes during the executive section 
at which the bill was considered by the committee are reported 
in a separate section of the report.
    An excessively long and detailed legislative history 
interrupts the continuity of a committee report, so this 
information should be provided in 1 or 2 brief paragraphs if 
possible. It is not necessary to list witnesses or excerpt 
their testimony in this section, as that information is 
available in the hearing record. Since the focus of the report 
should be on the measure being reported during the current 
session, one generally should avoid recounting the legislative 
history of similar measures considered in previous Congresses. 
This does not preclude discussion of other measures and action 
by previous sessions, however, where that discussion is an 
important part of the legislative history of the current 
measure.
                                EXAMPLES

      S. 1260 was introduced on June 13, 2003, by Senator 
McCain and Senator Brownback and was referred to the Committee 
on Commerce, Science, and Transportation. A hearing on the FAA 
Reauthorization was held on April 10, 2003. On June 19, 2003, 
the Committee met in open executive session and, by a voice 
vote, ordered S. 1260 reported without amendment.

           *       *       *       *       *       *       *

    Senator Burns, the chairman of the Communications 
Subcommittee of the Committee on Commerce, Science, and 
Transportation, introduced S. 1250 on June 12, 2003, with 
Senator Clinton as an original cosponsor. The bill is also 
cosponsored by Senator Lautenberg.
    On March 5, 2003, the Communications Subcommittee held a 
hearing on the implementation of E-911 services for wireless 
phones. Three members of Congress appeared before the 
Committee, in addition to a State assemblyman, and a diverse 
group of companies, associations, and private parties 
interested in E-911 services.
    On June 26, 2003, the Committee met in open executive 
session and by voice vote ordered the bill reported without 
amendment.

           *       *       *       *       *       *       *

    On April 8, 2003, Senator McCain introduced S.824, a bill 
to reauthorize the FAA and its programs, as well as streamline 
airport capacity projects and improve aviation security. The 
bill was originally co-sponsored by Senators Hollings, Lott, 
and Rockefeller. Sections of the bill regarding the 
streamlining of airport capacity projects largely arose from 
provisions provided in S. 633, the Aviation Delay Prevention 
Act, which was reported favorably out of the Commerce Committee 
in the 107th Congress. A substantial portion of the FAA's 
research and development sections were essentially identical to 
S. 2951, the Federal Aviation Administration Research, 
Engineering, and Development Act of 2002, which also was 
reported favorably out of the Commerce Committee and passed by 
the Senate during the 107th Congress.
    On April 10, 2003, the Commerce Committee held a hearing on 
S. 824.
    On May 1, 2003, the Committee ordered S. 824 to be reported 
favorably with an amendment in the nature of a substitute.

           *       *       *       *       *       *       *

    Senators Brownback (for himself, Mr. Allen, and Mr. L. 
Graham) introduced S. 2056 on February 9, 2004. The Committee 
held a hearing on indecent and violent programming and its 
effect on children on February 11, 2004, where all five FCC 
Commissioners testified.
    On March 9, 2004, the Committee held an executive session 
at which S. 2056 was considered. The bill was approved 
unanimously by voice vote and was ordered reported with 
amendments. The Committee first approved a perfecting amendment 
by Senators McCain and Brownback that would impose a per-
utterance penalty; require the FCC to consider a number of 
factors when assessing a fine; create a cap on the total amount 
a broadcast licensee may be fined during a 24-hour period; 
establish deadlines for the FCC to act on indecency complaints; 
and compel the FCC to report to Congress annually about its 
indecency enforcement activities. The perfecting amendment was 
modified by a second-degree amendment by Senator Stevens that 
would create an escalating fine structure; double the cap on 
fines if the FCC finds certain aggravating factors present; and 
require the FCC to commence a license revocation proceeding 
against any licensee that has paid, or been ordered by a court 
to pay, fines arising from three indecency violations during 
its license term. Additionally, the Committee approved an 
amendment offered by Senator Stevens that would eliminate any 
restrictions on broadcasters or associations representing 
broadcasters from instituting a voluntary industry code of 
conduct governing a family viewing policy. The Committee also 
approved an amendment by Senators Stevens and Allen that would 
``streamline'' the process for imposing financial penalties 
against non-licensees who violate 18 U.S.C. 1464, and increase 
the cap on fines against non-licensee violators. An amendment 
by Senators Dorgan, Lott, Snowe, and Cantwell was approved that 
would require the relationship between media consolidation and 
indecent broadcasts to be studied by the General Accounting 
Office (GAO) and would suspend the FCC's June 2, 2003, media 
ownership rules while the GAO conducts its study.
    The Committee also approved an amendment by Senators 
Hollings and Stevens that would require the FCC to study the 
effectiveness of the V-Chip and prohibit the distribution of 
violent video programming during the hours when children are 
reasonably likely to comprise a substantial portion of the 
audience, if the V-chip is determined to be ineffective.
    The amendment is substantially similar to legislation 
previously reported favorably by the Committee. In October, 
1993, the Committee held a hearing on television violence to 
consider a variety of legislative proposals. Attorney General 
Janet Reno testified that the legislation pending before the 
Committee, including S. 1383, the Hollings-Inouye legislation 
establishing a safe harbor for violent programming, would be 
constitutional.
    On July 11, 1995, the Committee held its second hearing on 
television violence to consider pending measures, including S. 
470, the Hollings safe harbor legislation. S. 470 (104th 
Congress) is identical to S. 1383 (103rd Congress). The 
Committee subsequently reported S. 470, as introduced, on 
August 10, 1995, by a recorded vote of 16 to 1, with two 
Senators not voting. No further action was taken during the 
104th Congress.
    On February 26, 1997, Senator Hollings with Senators Inouye 
and Dorgan as co-sponsors, introduced S. 363. S. 363 was 
similar to S. 470 but allowed the Commission to implement a 
safe harbor if it did not implement a content-based ratings 
system. On February 27, 1997, the Committee held another 
hearing on television violence in which S. 363 was addressed. 
Groups such as the APA expressed their disapproval of the 
current age based rating system proposed by the industry and 
noted their preference for a content-based ratings system. 
Kevin Saunders, Professor of Law at the University of Oklahoma, 
testified that violent programming could arguably be considered 
obscene or indecent and the safe harbor approach is 
constitutional. \46\ On May 1, 1997, the Committee reported S. 
363 with one amendment to add findings by a recorded vote of 19 
to 1.
---------------------------------------------------------------------------
    \46\  Testimony of Kevin Saunders, J.D., Ph.D. before the Senate 
Committee on Commerce, Science, and Transportation, February 27, 1997. 
p. 17 and 7.
---------------------------------------------------------------------------
    On April 26, 1999, Senator Hollings introduced S. 876, safe 
harbor legislation that was substantially similar to S. 470 and 
S. 1383. The bill was co-sponsored by Senators Byrd, Durbin, 
and Inouye. On May 13, 1999, the Committee held its third 
hearing on television violence and safe harbor legislation. 
Senator Hollings' bill, S. 876 was discussed at length, and 
testimony was offered as to the constitutionality of the 
measure as well as the adverse harm to children affected by 
exposure to violence on television. On September 20, 2000, the 
Committee reported S. 876, as amended, by a recorded vote of 17 
to 1, with one Senator voting present.
    On April 10, 2003, the Committee held its fourth hearing on 
the impact of violent material on children. Specifically, the 
witnesses testified on neurobiological research in the field of 
brain mapping and conclusions reached on the impact of media 
violence on children. On February 1, 2004, the Committee held 
its fifth hearing on television violence. Senator Hollings's 
safe harbor legislation, S. 161, which was incorporated with 
minor changes as an amendment into S. 2056, was discussed by 
the five FCC Commissioners.

                      SUMMARY OF MAJOR PROVISIONS

    This section should be used to set forth the major 
provisions of the bill in a summary fashion, with special 
emphasis on any change in policy contained in the reported 
bill. Special care should be taken to ensure that the summary 
accurately reflects the bill as reported. This section may be 
omitted in a report on a short bill, particularly if it would 
do nothing more than repeat the material in the ``Purpose of 
the Bill'' section.
    Bear in mind that this section is a summary of the major 
provisions of the bill. It should neither paraphrase the bill 
nor duplicate the section-by-section analysis that appears in a 
subsequent section of the report.
    This section should omit minor, technical, and conforming 
provisions of the reported bill.

                                EXAMPLES

    S. 165 would provide for several steps to improve the 
security of air cargo, particularly that which is carried 
aboard passenger aircraft. The TSA would be required to develop 
a strategic plan to ensure that all air cargo is screened, 
inspected, or otherwise made secure. TSA also would be required 
to develop a system for the regular inspection of air cargo 
shipping facilities. A database of known shippers would be 
established in order to bolster the Known Shipper Program. 
Indirect air carriers could have their certificates revoked if 
TSA finds that they are not adhering to security laws or 
regulations. The existing Federal security program for indirect 
air carriers would be reviewed and assessed for possible 
improvements. TSA would develop a security training program for 
persons who handle air cargo. All-cargo carriers would be 
required to develop security plans that would be subject to 
approval by the TSA.
    S. 165 also would alter a provision in ATSA to expand the 
requirements of background checks for alien flight school 
applicants to include all aircraft instead of aircraft weighing 
12,500 pounds or more.
    S. 165 also would require a number of studies to be 
undertaken by the Department of Transportation and the 
Department of Homeland Security.

           *       *       *       *       *       *       *

    S. 1404 would amend the Act to--
          (1) reduce the size of the existing USOC board of 
        directors from 124 members to nine elected members, 
        five of whom would be independent, two representatives 
        of the Athletes Advisory Council (AAC), and two 
        representatives of the National Governing Bodies 
        Council (NGBC) (in addition, the speaker of a newly-
        formed assembly and the U.S. members of the 
        International Olympic Committee (IOC) would serve on 
        the board as ex officio members);
          (2) designate the board as the principal governing 
        body of the USOC;
          (3) require that the board appoint a chief executive 
        officer to carry out the policies and priorities of the 
        USOC;
          (4) require that the board establish four standing 
        committees of the board (audit, compensation, ethics, 
        and nominating and governance);
          (5) create an assembly consisting of the many USOC 
        stakeholders as provided in section 220504 of the Act, 
        including a maximum of three individuals who 
        represented the United States at the Olympics not 
        within the preceding 10 years;
          (6) require that the assembly have authority as 
        provided by the board to determine matters pertaining 
        to the Olympic Games;
          (7) require that the assembly elect a speaker;
          (8) require the board to establish whistleblower 
        procedures for the treatment of complaints received by 
        the USOC, as well as procedures to protect employees 
        from retaliation for submitting a complaint;
          (9) modify the existing ombudsman function;
          (10) increase the operational and financial 
        transparency of the USOC by requiring the USOC to 
        report Congress and the President on a biennial basis;
          (11) provide basic ethics and compliance guidance to 
        the USOC ethics committee; and
          (12) allow the National Senior Games Association of 
        Baton Rouge, Louisiana, to use the words ``Senior 
        Olympics'' to promote national athletic competition 
        among senior citizens.

           *       *       *       *       *       *       *

    The CAN-SPAM Act, S. 877, aims to address the problem of 
spam by creating a Federal statutory regime that would give 
consumers the right to demand that a spammer cease sending them 
messages, while creating civil and criminal sanctions for the 
sending of spam meant to deceive recipients as to its source or 
content. Under the legislation, enforcement would be undertaken 
by the FTC and, in some cases, industry-specific regulatory 
authorities. In addition, the bill would enable State attorneys 
general and ISPs to bring actions against violators.
    If enacted, S. 877 would require senders of all commercial 
e-mail to include a valid return e-mail address and other 
header information with the message that accurately identifies 
the sender and Internet location from which the message has 
been sent. Except for transactional or relationship e-mail 
messages (as defined therein), the legislation would also 
require senders of commercial e-mail to provide an Internet-
based system for consumers to opt out of receiving further 
messages from that sender. Moreover, a sender of UCE would be 
required additionally to include in the e-mail message itself a 
valid physical address of the sender as well as clear and 
conspicuous notice that both the message is an advertisement or 
solicitation and that the recipient may opt out of further UCE 
from the sender.
    S. 877 would also require businesses to ensure that they 
are not promoted in e-mail sent with false or misleading 
transmission information. The bill would hold the promoted 
businesses responsible if they: (1) know or should know about 
such deceptive promotion; (2) are receiving or expect to 
receive an economic benefit from it; and (3) are taking no 
reasonable precautions to prevent such promotion or to detect 
and report it to the FTC.

                            ESTIMATED COSTS

    Paragraph 11(a) of rule XXVI of the Standing Rules of the 
Senate requires reports for each bill or joint resolution 
reported by a committee to include an estimate of the cost of 
carrying out the reported measure for the 5 fiscal years 
following the fiscal year in which it is reported. This rule 
applies to each reported bill or joint resolution, without 
regard to whether it specifically authorizes or requires the 
expenditure of funds.
    Cost estimates are prepared by the Congressional Budget 
Office (CBO) and are transmitted with a cover letter addressed 
to the chairman and the ranking member. They also appear on the 
CBO website where they can be accessed online and printed for 
inclusion, as a hard copy attachment, in the report.
    Because of the number of legislative measures on which the 
CBO may be working at any given time, the need for specialized 
analysis of the impact of legislation, and the complexity of 
the estimating process, it may be several days or even weeks 
before the estimate can be released. Under no circumstances 
should staff hold off on preparing a committee report until the 
cost estimate is received from CBO.
    To facilitate the cost estimate process:
           Identify the CBO analyst responsible for 
        making the original estimate as early as practicable. 
        This can be done by calling CBO or by reviewing a 
        recent committee report dealing with the same or a 
        similar subject matter.
           Through the Committee's Legislative Counsel, 
        make sure that the appropriate CBO analyst has a copy 
        of the draft reported bill text as soon as possible 
        after the mark-up, and that the analyst is promptly 
        apprised of any subsequent revisions to that text.
           Promptly provide the CBO analyst any 
        additional information requested, as well as any 
        additional information that may be important in 
        estimating the cost of implementing the measure.
           Alert the CBO analyst to the anticipated 
        filing date for the report. This is particularly 
        important if the bill and report are to be filed within 
        days after the mark-up.
    The cost estimate is an important element of the report and 
may become a critical factor in the consideration of a reported 
bill, affecting the decision of the Budget Committee to clear a 
bill for floor consideration or subjecting the bill to a point 
of order.
    In extraordinary circumstances, such as the last week 
before adjournment, it may be necessary for the committee to 
waive this requirement.
    The waiver language is as follows:
          In compliance with subsection (a)(3) of paragraph 11 
        of rule XXVI of the Standing Rules of the Senate, the 
        Committee states that, in its opinion, it is necessary 
        to dispense with the requirements of paragraphs (1) and 
        (2) of that subsection in order to expedite the 
        business of the Senate.

                                EXAMPLES

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, July 7, 1992.
Hon. Ernest F. Hollings,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the attached cost estimate for S. 2788, the National 
Marine Sanctuaries Program Amendments Act of 1992.
    Enactment of S. 2788 would affect direct spending and 
receipts and thus would be subject to pay-as-you-go procedures 
under section 252 of the Balanced Budget and Emergency Deficit 
Control Act of 1985.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                              James L. Blum
                              (For Robert D. Reischauer, Director).

               CONGESSIONAL BUDGET OFFICE--COST ESTIMATE

    1. Bill number: S. 2788.
    2. Bill title: National Marine Sanctuaries Program 
Amendments Act of 1992.
    3. Bill status: As ordered reported by the Senate Committee 
on Commerce, Science, and Transportation on June 16, 1992.
    4. Bill purpose: S. 2788 would amend the Marine Protection, 
Research, and Sanctuaries Act of 1972 to expand the purposes 
and policies of the act, clarify the definition of ``marine 
environment,'' and add new requirements regarding sanctuary 
designation and implementation, international cooperation, 
prohibited activities, enforcement, and damage payments. In 
addition, the bill would authorize appropriations for the 
marine sanctuary program for fiscal years 1993 through 1995, 
establish advisory councils to advise the Secretary of Commerce 
regarding the designation and management of marine sanctuaries, 
and designate the Provasoli-Guillard Center for the Culture of 
Marine Phytoplankton as a national center and facility. The 
bill also would establish a Hawaiian Islands Humpback Whale 
Sanctuary and would authorize funds to carry out the 
designation of the new sanctuary.
    5. Estimated cost to the Federal Government:

                                    [By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                              1993       1994       1995       1996       1997
----------------------------------------------------------------------------------------------------------------
Authorizations:
    Authorization level..................................         11         13         15          0          0
    Estimated outlays....................................          6         11         13          6          2
Estimated revenues.......................................      (\1\)      (\1\)      (\1\)      (\1\)      (\1\)
Direct spending:
    Estimated budget authority...........................      (\1\)      (\1\)      (\1\)      (\1\)      (\1\)
    Estimated outlays....................................      (\1\)      (\1\)      (\1\)      (\1\)      (\1\)
----------------------------------------------------------------------------------------------------------------
\1\ Less than $500,000.

    The costs of this bill fall within budget function 300.
    Basis of estimate: CBO assumes that all funds authorized 
would be appropriated and that spending would occur at 
historical rates. In addition, CBO expects that funding for the 
advisory councils established in the bill would come from the 
authorized funds.
    Under current law, NOAA has the authority to collect civil 
penalties for violations of regulations protecting marine 
sanctuaries from environmental damage. Penalties owed under the 
Marine Protection, Research, and Sanctuaries Act of 1972 
receive no preference over amounts owed to other creditors in 
the case of an individual who cannot meet debt obligations. 
Section 9 of the bill would allow NOAA to receive priority 
treatment over other creditors when making a claim on a vessel. 
In addition, the section would increase from $50,000 to 
$125,000 the maximum civil penalty per violation. Based on 
information from NOAA, CBO estimates that this section would 
cause a negligible increase in receipts. Because the agency has 
the authority to spend such receipts, there would also be a 
small increase in direct spending resulting from the collection 
of these receipts.
    In addition to levying civil penalties, NOAA has the 
authority to charge individuals who injure or damage sanctuary 
resources for the cost of the damage sustained. Under current 
law, interest does not accrue on damage assessments. Under 
section 12 of the bill, interest would accrue on any 
outstanding damage payments owed under the Marine Protection, 
Research, and Sanctuaries Act. CBO estimates that this section 
would cause a negligible increase in revenues and a 
corresponding small increase in direct spending from these 
collections. The total increase in revenues and in direct 
spending from sections 9 and 12 would amount to less than 
$500,000 a year.
    CBO expects that establishing the Hawaiian Islands Humpback 
Whale Sanctuary would result in only those costs ($800,000) 
authorized for the sanctuary. The creation of another sanctuary 
could increase receipts from penalties, but this increase would 
depend on a number of factors that cannot be predicted at this 
time, such as the amount of traffic in the sanctuary or the 
amount of the fines that would typically be assessed. Any such 
receipts are not likely to be significant. In addition, CBO 
estimates that establishing the sanctuary would not result in a 
loss of receipts from mineral leasing activity. Based on 
information from the Department of the Interior, it appears 
that no mineral leases are currently in place in the designated 
areas.
    6. Pay-as-you-go considerations: Title II and sections 9 
and 12 of the bill would result in small increases in receipts 
and direct spending. CBO estimates that these amounts would be 
less than $500,000 in each fiscal year.
    7. Estimated cost to state and local governments: None.
    8. Estimate comparison: None.
    9. Previous CBO estimate: On June 5, 1992, CBO prepared an 
estimate for H.R. 4310, the National Marine Sanctuaries 
Reauthorization and Improvement Act of 1992, as ordered 
reported by the House Committee on Merchant Marine and 
Fisheries. This bill is similar to the one reported in the 
House. The two cost estimates differ primarily because the 
funding authorized in S. 2788 is less than that in H.R. 4310.
    10. Estimate prepared by: Patricia Conroy.
    11. Estimate approved by: Paul Van de Water, for C.G. 
Nuckols, Assistant Director for Budget Analysis.

           *       *       *       *       *       *       *


S. 2603--Junk Fax Prevention Act of 2004

    S. 2603 would amend current law and regulations relating to 
unsolicited advertisements sent via telephone facsimile 
machine. The bill would direct the Federal Communications 
Commission (FCC) to issue regulations to control such 
advertisements and would require the FCC and the Government 
Accountability Office to issue reports to the Congress on the 
effectiveness of those regulations. The FCC currently enforces 
laws relating to unsolicited advertisements, including 
assessing and collecting civil penalties for violations of such 
laws. (Civil penalties are recorded in the federal budget as 
revenues.) Based on information from the FCC, CBO estimates 
that implementing S. 2603 would not have a significant effect 
on revenues or spending subject to appropriation. Enacting the 
bill would not affect direct spending.
    S. 2603 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    S. 2603 would impose private-sector mandates, as defined in 
the UMRA, on senders of unsolicited facsimile advertisements. 
The bill would require senders to include an opt-out notice 
that is clear, conspicuous, and on the first page. Such a 
notice would allow recipients to contact the sender to prevent 
them from sending unsolicited advertisements in the future. 
Additionally, the opt-out notice must include ``a domestic 
contact telephone and facsimile machine number for the 
recipient to transmit such a request to the sender; and a cost-
free mechanism for a recipient to transmit a request.'' The 
cost-free mechanism might include either a toll-free or a local 
telephone number.
    Regulations promulgated by the FCC in July 2003, which are 
slated to take effect in January 2005, would require written 
permission from recipients prior to senders' transmission of 
any unsolicited fax advertisements. If this bill were enacted, 
it would eliminate the requirement to obtain written permission 
from customers but replace this requirement with the opt-out 
mechanism. Based on information from industry sources, CBO 
expects that the aggregate direct cost of mandates in the bill 
would be fully offset by savings from the bill and thus would 
fall below the annual threshold established by UMRA for 
private-sector mandates ($120 million in 2004, adjusted 
annually for inflation).
    On July 7, 2004, CBO transmitted a cost-estimate for H.R. 
4600, the Junk Fax Prevention Act of 2004, as ordered reported 
by the House Committee on Energy and Commerce on June 24, 2004. 
The two pieces of legislation are similar, and the estimated 
costs are the same.
    The CBO staff contacts for this estimate are Melissa E. 
Zimmerman (for federal costs), Sarah Puro (for the state and 
local impact), and Karen Raupp (for the private-sector impact). 
The estimate was approved by Robert A. Sunshine, Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires reports for each bill or joint resolution 
reported by a committee to include ``an evaluation, . . . of 
the regulatory impact which would be incurred in carrying out 
the bill or joint resolution.''
    Specifically, this rule requires that the evaluation 
include the following:
           An estimate of the number of individuals and 
        businesses who would be regulated and a determination 
        of the groups and classes of such individuals and 
        businesses.
           A determination of the economic impact of 
        such regulation on the individuals, consumers, and 
        businesses affected.
           A determination of the impact on the 
        personal privacy of the individuals affected.
           A determination of the amount of additional 
        paperwork that will result from the regulations to be 
        promulgated pursuant to the bill or joint resolution, 
        which may include--
                   estimates of the amount of time and 
                financial costs required of affected parties, 
                showing whether the effects of the bill or 
                joint resolution could be substantial; and
                   reasonable estimates of the 
                recordkeeping requirements that may be 
                associated with the bill or joint resolution.
    Staff members should not treat the regulatory impact 
statement as mere boilerplate. Unlike the cost estimate, which 
is prepared by the Congressional Budget Office, there is no 
office to which the preparation of the regulatory impact 
statement may be delegated. Resources available to the staff 
for preparation of the statement include testimony presented at 
hearings, the administering Federal agency for any program 
established or modified by the legislation, and the 
Congressional Research Service.
    Particular care should be taken in stating any expected 
increase or decrease in regulatory burden as the committee 
report may be cited during floor debate by opponents of the 
Committee's reported bill or joint resolution. The Committee on 
Homeland Security and Governmental Affairs (HSGAC) in the past 
has informally monitored all regulatory impact statements and 
may send a letter to the chairman of any committee that files a 
statement HSGAC considers to be inadequate.
    Ultimately, however, the staff member must make sure that 
the regulatory impact statement accurately and completely 
reflects any major changes in regulatory activity. When 
regulatory activity will be increased, the staff member must 
provide a full and effective explanation as to the need for the 
increased regulation. Any decrease in regulatory burden should 
be noted as carefully and thoroughly as any increase in 
regulatory burden.
    Finally, if the bill or joint resolution would not affect 
any of the regulatory burdens for which a determination is 
required, the report should reflect that assessment. Thus, if a 
bill would merely continue existing programs with little or no 
change in the regulatory impact of those programs, a concise, 
one paragraph regulatory impact statement will suffice.
    In extraordinary circumstances, such as bills or joint 
resolutions ordered reported (or reports written) during the 
last week before adjournment, it may be necessary for the 
committee to waive this requirement.
    The waiver language is as follows:
          In compliance with subsection (b)(2) of paragraph 11 
        of rule XXVI of the Standing Rules of the Senate, the 
        Committee states that, in its opinion, it is necessary 
        to dispense with the requirements of paragraph (1) of 
        that subsection in order to expedite the business of 
        the Senate.
    The no-impact language is as follows:
          Because S. ------ does not create any new programs, 
        the legislation will have no additional regulatory 
        impact, and will result in no additional reporting 
        requirements. The legislation will have no further 
        effect on the number or types of individuals and 
        businesses regulated, the economic impact of such 
        regulation, the personal privacy of affected 
        individuals, or the paperwork required from such 
        individuals and businesses.

                               EXAMPLES:

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:
    The bill, as reported, will clarify the Coast Guard's 
existing authority to establish separate lines dividing the 
high seas and inland waters for purposes of determining the 
applicability of inland navigational rules and various marine 
safety laws. It will have no effect on the number of 
individuals regulated or on the personal privacy of such 
persons. For the operators of barges within the lines of 
demarcation, however, the costs of compliance with regulations 
and the amount of paperwork required for such compliance will 
be reduced.

           *       *       *       *       *       *       *


                       NUMBER OF PERSONS COVERED

    The bill would require the development of Federal inter-
agency assessments on harmful algal blooms and hypoxia, as well 
as prediction and response plans at the request of State, 
tribal, and local governments. It does not authorize any new 
regulations and therefore will not subject any individuals or 
businesses to new regulations.

                            ECONOMIC IMPACT

    The bill would authorize $26 million in FY 2004, $26.5 
million in FY 2005, $27 million in FY 2006, $27.5 million for 
FY 2007, and $28 million for FY 2008. in appropriations to the 
Secretary of Commerce. These funding levels are relatively 
modest and are not expected to have an inflationary impact on 
the nation's economy.

                                PRIVACY

    The bill will not have any adverse impact on the personal 
privacy of individuals.

           *       *       *       *       *       *       *


                       NUMBER OF PERSONS COVERED

    S. 165 is intended to improve aviation security by making 
modifications to P.L. 107-71, the Aviation and Transportation 
Security Act (ATSA). The bill affects TSA and other entities 
already subject to TSA rules and regulations, and therefore the 
number of persons covered should be consistent with the current 
levels of individuals impacted under the provisions that are 
addressed in the bill.

                            ECONOMIC IMPACT

    S. 165 is not expected to have an adverse impact on the 
nation's economy. It is anticipated that Sections 2 through 6 
would have positive economic impacts to their respective areas, 
and should provide significant support to the aviation 
industry. The bill addresses cargo security and would authorize 
the necessary funding to establish a system that ensures all 
air cargo is secure by requiring TSA and the air cargo industry 
to take steps to protect the system.

                                PRIVACY

    S. 165 would have minimal effect on the privacy rights of 
individuals, but a provision on identification training raises 
the issue of a person proving their identity, potentially with 
the aid of technology. The use of biometrics and other 
identifiers raise a number of questions that need to be 
addressed by TSA to ensure that the privacy rights of 
individuals are protected. Senator Wyden's provision is 
intended to ensure privacy for passenger screening.

                               PAPERWORK

    The Committee does not anticipate a major increase in 
paperwork burdens resulting from the passage of this 
legislation. In those areas where the bill does require 
additional paperwork, it is aimed at improving the security of 
the national air transportation system. S.165 would require the 
establishment of a database to improve the system by which 
known shippers of cargo are identified, and would require 
reports to Congress on several security matters addressed by 
other provisions.

           *       *       *       *       *       *       *


                       NUMBER OF PERSONS COVERED

    Section 202(5) of this legislation would direct the 
Administrator of the USFA (the Administrator) to support the 
development of new voluntary consensus standards for new 
firefighting technologies through national voluntary consensus 
standards organizations. Recipients of grants through the 
Assistance to Firefighters program, as defined by section 33 of 
the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 
2229), would be required by regulation to purchase equipment 
for which applicable voluntary consensus standards have been 
established.

                            ECONOMIC IMPACT

    This legislation would not have an adverse economic impact 
on the nation. The bill would promote the development of more 
effective equipment and the establishment of better 
coordination and training for response to fires, terrorist 
attacks, and other national emergencies.

                                PRIVACY

    S. 1152 would not have a negative impact on the personal 
privacy of individuals.

                               PAPERWORK

    The legislation would not increase paperwork requirements 
for private individuals or businesses. The bill would require 
two reports from the Federal government. The first report would 
be from the Administrator to the Senate Committee on Commerce, 
Science, and Transportation and the House of Representatives 
Committee on Science, within 90 days after the enactment of 
this legislation, on the need for a strategy concerning the 
deployment of volunteers and emergency response personnel, 
including a national credentialing system, in the event of a 
national emergency. The second report would be from the Under 
Secretary of Emergency Preparedness and Response at the 
Department of Homeland Security to the Senate Committee on 
Commerce, Science, and Transportation and the House of 
Representatives Committee on Science, within 180 days after the 
date of enactment, on revisions that the Under Secretary has 
made to the Federal Response Plan for responding to terrorist 
attacks, particularly in urban areas, including fire detection 
and suppression, and related emergency services. The 
legislation also would establish a $3,000,000 grant program for 
fire fighting equipment necessary to fight fires using foam in 
remote areas without access to water. Applicants to this grant 
program would have to file documents to apply for this program.

                   CONGRESSIONALLY DIRECTED SPENDING

  Section 521 of the Honest Leadership and Open Government Act 
of 2007 (Pub. L. 110-81) amended the Standing Rules of the 
Senate by adding a new rule XLIV, ``Congressionally Directed 
Spending and Related Items'' that requires the Committee to 
identify ``Congressionally directed spending items'' in 
committee reports. A bill reported by the committee that 
contains such an item is subject to a point of order unless the 
Majority Leader certifies that each such item has been 
identified ``through lists, charts, or other similar means 
including the name of each Senator who submitted a request to 
the committee for each identified item.''

                           DISCLOSABLE ITEMS

  Paragraph 5(a) of the rule defines the term ``congressionally 
directed spending item'' as ``a provision or report language 
included primarily at the request of a Senator providing, 
authorizing, or recommending a specific amount of discretionary 
budget authority, credit authority, or other spending authority 
for a contract, loan, loan guarantee, grant, loan authority, or 
other expenditure with or to an entity, or targeted to a 
specific State, locality, or Congressional district, other than 
through a statutory or administrative formula-driven or 
competitive award process''. The rule applies also to ``limited 
tax benefits'' and ``limited tariff benefits'', but the 
Committee would rarely, if ever, include such items in its 
reported bills because of jurisdictional considerations.
  Paragraph 4(b) of the rule requires a committee that reports 
a bill or joint resolution that includes a congressionally 
directed spending item, or that includes such an item in the 
committee report, to identify the item on a publicly accessible 
congressional website through lists, charts, or other similar 
means ``as soon as practicable''. The items are to be 
identified by the name of each Senator who submitted a request 
to the committee for each item. The availability on the 
Internet of a committee report that contains this information 
satisfies this requirement.

                         WHAT MUST BE DISCLOSED

  Paragraph 1(a)(1) of the rule requires a disclosable item to 
be identified through lists, charts, or other similar means, 
including the name of each Senator who submitted a request to 
the committee for each identified item.

             INFORMATION TO BE PROVIDED BY SENATOR'S OFFICE

  Paragraph 6(a) of the rule requires a Senator who requests a 
congressionally directed spending item in a bill or joint 
resolution to provide a written statement to the chairman and 
ranking member that includes--
          (1) the Senator's name;
          (2) the name and location of the intended recipient, 
        or, if there is no specifically intended recipient, the 
        intended location of the activity;
          (3) the purpose of the item; and
          (4) a certification that neither the Senator nor the 
        Senator's immediate family has a pecuniary interest in 
        the item.

                              48-HOUR RULE

  Paragraph 1(a)(2) of the rule requires the Majority Leader to 
certify that the disclosed information has been available on a 
publicly accessible congressional website in a searchable 
format for at least 48 hours before the Senate votes on a 
motion to proceed to consider the bill.

                                EXAMPLES

                   Congressionally Directed Spending

  In accordance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides the 
following identification of congressionally directed spending 
items contained in the bill, as reported:

------------------------------------------------------------------------
         Section             Earmark/Provision            Member
------------------------------------------------------------------------
Authorization             Construction of         Sen. Kerry
                           Chelsea Street Bridge
                           in Chelsea, MA.
------------------------------------------------------------------------
Section 103               Web-based risk          Sen. Kerry
                           management data
                           system.
------------------------------------------------------------------------
Section 503               Coast Guard to          Sen. Kerry
                           maintain LORAN-C
                           Navigation System.
------------------------------------------------------------------------
Section 705               Olympic Coast National  Sen. Cantwell
                           Marine Sanctuary.
------------------------------------------------------------------------
Section 707               Improved Coordination   Sen. Cantwell
                           with tribal
                           governments.
------------------------------------------------------------------------
Section 716               Vessel traffic risk     Sen. Stevens
                           assessments.
------------------------------------------------------------------------
Section 717               Oil spill liability     Sen. Stevens
                           trust fund investment
                           amount data.
------------------------------------------------------------------------
Section 904                Data.................  Sen. Stevens
------------------------------------------------------------------------
Section 918               Fur Seal Act            Sen. Stevens
                           authorization.
------------------------------------------------------------------------
Section 919               Study of relocation of  Sen. Clinton
                           Coast Guard Sector
                           Buffalo facilities.
------------------------------------------------------------------------
                                                  

           *       *       *       *       *       *       *

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

           *       *       *       *       *       *       *

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides the 
following identification of congressionally directed spending 
items contained in the bill, as reported:

----------------------------------------------------------------------------------------------------------------
                                       Section                                          Provision      Member
----------------------------------------------------------------------------------------------------------------
Sec. 805                                                                                  Olympic       Senator
                                                                                                 Coast         Cantwell
                                                                                         National
                                                                                           Marine
                                                                                        Sanctuary
----------------------------------------------------------------------------------------------------------------
Sec. 814                                                                                Oil spill       Senator
                                                                                        liability        Begich
                                                                                       trust fund
                                                                                       investment
                                                                                           amount
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------


                      SECTION-BY-SECTION ANALYSIS

    This section of the report contains a detailed analysis of 
the reported bill. It begins with the first section of the bill 
and proceeds in numerical order by section until all sections 
of the bill have been discussed.
    The discussion of each section should contain such analysis 
and amplification as is necessary to make clear the intent of 
the provision. If the intent of the provision is evident on its 
face, no further amplification is needed or desirable. The 
staff member should merely describe that section, taking care 
to be sure that the description does not appear to change the 
meaning of the provision in any way.
    There will be instances in which the Committee wishes to 
amplify the intent of a provision, including--
          (1) expressing the Committee's view or expectation as 
        to how a provision is to be implemented;
          (2) providing examples of how complex provisions are 
        intended to work in real-life situations; and
          (3) providing guidance as to how qualifying words and 
        phrases, such as ``reasonable'', ``substantial'', and 
        ``to the greatest extent practicable'' should be 
        interpreted.
    Particular care should be taken in writing such material, 
as the courts and administering agencies may turn to the 
section-by-section analysis for guidance in interpreting the 
statutory language, particularly if its application to a 
specific set of circumstances is unanticipated or unclear. If 
the section-by-section analysis is carelessly written, the risk 
that the court or administering agency may reach an 
interpretation that is at odds with the Committee's 
expectations is increased.
    If the text of a section was changed significantly by 
amendment during the mark-up, it may be helpful to describe the 
text of the section as it appeared in the original text before 
describing the section as amended so a reader may more easily 
grasp the policy concerns of the Committee in adopting the 
amendment.
    While each section of a bill must be described, it is not 
necessary to include a description of every subsection. If, on 
the other hand, a subsection, paragraph, subparagraph, or 
clause is critical to the interpretation of the section, then 
it should be separately described. The analysis of a section 
setting forth the definition of various terms used in a bill 
might read as follows: ``Section 2 contains the definitions of 
26 terms used in the bill, of which the most important are the 
following: . . .''.

                              EXAMPLES \2\
---------------------------------------------------------------------------

    \2\ Because of length, only portions of the section-by-section 
analyses are shown in the examples).
---------------------------------------------------------------------------
Section 1. Short title.

    This section would provide that the legislation may be 
cited as the ``Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003'' or as the ``CAN-SPAM 
Act of 2003''.

Section 2. Congressional findings and policy.

           *       *       *       *       *       *       *

Section 3. Definitions.

    This section would define 19 terms used throughout the 
bill, some of which have a specific contextual meaning in the 
statutory regime created by the legislation. The following 
definitions included in S. 877 are of particular importance:
          Affirmative Consent.--The term ``affirmative 
        consent'' means that the message is being sent with the 
        express consent of the recipient. Pursuant to this 
        definition, affirmative consent is intended to require 
        some kind of active choice or selection by the 
        recipient; merely remaining passive, as in the case 
        where a consumer fails to modify a default setting 
        expressing consent, is not a sufficient basis for 
        affirmative consent. If the recipient's consent was 
        prompted by a request for such consent, as opposed to 
        consent expressed at the recipient's own initiation (as 
        in the case where a consumer wants a product catalogue 
        and e-mails the company to ask for it), then such 
        request must be clear and conspicuous or affirmative 
        consent will not be deemed present. This definition 
        does not require consent on an individual, sender-by-
        sender basis. A recipient could affirmatively consent 
        to messages from one particular company, but could also 
        consent to receive either messages on a particular 
        subject matter (e.g., gardening products) without 
        regard to the identity of the sender, or messages from 
        unnamed marketing partners of a particular company. The 
        only limitation on such third-party affirmative consent 
        is that the person granting such consent must have been 
        provided clear and conspicuous notice, at the time such 
        consent is granted, that the person's e-mail address 
        may be transferred to such third parties. The purpose 
        of this limitation is to ensure that consumers are 
        fully informed of the scope of any third-party consent 
        they may grant.
          Commercial Electronic Mail Message.--The term 
        ``commercial electronic mail message'' means any 
        electronic mail message where the primary purpose is 
        the commercial advertisement or promotion of a product 
        or service. This definition is intended to cover 
        marketing e-mails. Advertisements for content on an 
        Internet website operated for a commercial purpose are 
        included within the definition because an e-mail urging 
        the recipient to visit a particular commercial website 
        is just as much a marketing message as an e-mail urging 
        the purchase of a specific product or service. However, 
        the definition is not intended to cover an e-mail that 
        has a primary purpose other than marketing, even if it 
        mentions or contains a link to the website of a 
        commercial company or contains an ancillary marketing 
        pitch.
          Electronic Mail Message.--The term electronic mail 
        message means a message sent to a unique electronic 
        mail address. The definition is intended to apply to 
        the message in the form that it is sent, regardless of 
        whether or in what form it is received. For example, an 
        electronic mail message may be blocked by filtering 
        software, or truncated or altered by some other type of 
        software installed by the recipient or the recipient's 
        Internet service provider. Such downstream effects have 
        no impact on what constitutes the underlying electronic 
        mail message for purposes of this Act.
          Header Information.--The term ``header information'' 
        means the source, destination, and routing information 
        attached to the beginning of an e-mail message, 
        including the originating domain name and originating 
        e-mail address, and any other information that appears 
        in the line purporting to identify the person 
        initiating the message (commonly referred to as the 
        ``from'' line).
          Implied Consent.--The term ``implied consent'', in 
        reference to a commercial e-mail message, means that 
        two requirements are met. First, a business 
        transaction, between the sender and recipient, must 
        have occurred within a 3-year period ending upon 
        receipt of the message. A business transaction may 
        include a transaction involving the provision, free of 
        charge, of information, goods, or services requested by 
        the recipient. However, merely visiting a free website 
        and browsing its content does not constitute a 
        ``transaction'' for purposes of this definition. 
        Second, the recipient of the message must have been 
        given clear and conspicuous notice of an opportunity 
        not to receive UCE from the sender and has not 
        exercised that opportunity. Unlike affirmative consent, 
        implied consent does not require an active choice or 
        request by the recipient, so long as the recipient has 
        been given the ability via conspicuous notice to 
        decline receiving additional messages from the sender. 
        The definition also clarifies that a recipient's 
        implied consent may apply only to a particular division 
        or line of business within a particular corporation, 
        rather than the entire corporation, if the corporation 
        represented itself as a particular division or line of 
        business in its dealings with the recipient. The 
        rationale for this is that it would be unfair to read 
        the recipient's implied consent more broadly, when the 
        recipient may not have been aware of the identity of 
        the broader corporation.

           *       *       *       *       *       *       *

          Procure.--The term ``procure'', when used with 
        respect to the initiation of a commercial electronic 
        mail message, means intentionally to pay or induce 
        another person to initiate the message on one's behalf, 
        while knowingly or consciously avoiding knowing the 
        extent to which that person intends to comply with this 
        Act. The intent of this definition is to make a company 
        responsible for e-mail messages that it hires a third 
        party to send, unless that third party engages in 
        renegade behavior that the hiring company did not know 
        about. However, the hiring company cannot avoid 
        responsibility by purposefully remaining ignorant of 
        the third party's practices. The ``consciously avoids 
        knowing'' portion of this definition is meant to impose 
        a responsibility on a company hiring an e-mail marketer 
        to inquire and confirm that the marketer intends to 
        comply with the requirements of this Act.

           *       *       *       *       *       *       *

Section 2. Authorization of appropriations.

    This section would amend section 32(a) of the CPSA to 
authorize appropriations for the CPSC not to exceed $60,000,000 
for fiscal year 2004, $66,800,000 for fiscal year 2005, 
$70,000,000 for fiscal year 2006, and $73,600,000 for fiscal 
year 2007.

Section 3. FTE staffing levels.

    This section would amend section 4(g) of the CPSA to 
authorize the Commission to hire and maintain a full-time 
equivalent staff of 471 persons throughout the reauthorization 
period.

Section 4. Executive director and officers.

    This section would amend section 4(g) of the CPSA to 
conform the Commission's employee position titles that 
currently exist but that have not been formally authorized. No 
staff title changes entail the re-designation of career staff 
as political staff, or vice versa.

Section 5. Substantial product hazard recalls.

    This section would amend section 15 of the CPSA to 
authorize the Commission to conduct defective product recall 
notification otherwise required of a manufacturer, retailer, or 
distributor under the CPSA. Pursuant to this section, in the 
event that the Commission makes a preliminary hazard 
determination that there exists a Class A or B product hazard 
(as defined in the CPSC handbook), and the Commission finds 
that the manufacturer, retailer, or distributor is financially 
unable to provide adequate notification to the consumers of the 
product as required by the CPSA and that such notification is 
the public interest, then the Commission may provide 
notification. This section would require that within 120 days 
of enactment, the Commission prescribe strict standards for 
determining when a manufacturer is financially unable to effect 
adequate notifications required by the CPSA.

           *       *       *       *       *       *       *

Section 3. Chairman designated with Senate confirmation.

    Section 3 would make the President's designation of one of 
the STB members to serve as Chairman subject to Senate 
confirmation.

Section 4. Expedited procedure for small rate challenges.

    Section 4 would require the STB to issue new regulations to 
address small rate challenges within 180 days following 
enactment. The rules would establish standards for determining 
what rate cases will be eligible to use expedited procedures 
taking into account the size of the shipper, the value of the 
case and other relevant factors, and establish the specific 
test or tests for determining whether the challenged rate is 
reasonable. Filing fees in small rate cases would not exceed 
the fee charged to bring a civil action in United States 
District Court. An initial decision could be made by an ALJ, 
with an opportunity to appeal the ALJ's decision to the Board. 
Finally, the amendment would require the STB to make 
recommendations to Congress for any additional legislative 
changes the Board determines are necessary to address the 
handling of small rate cases.

Section 5. Application of certain agreements.

    This section would codify the voluntary agreement reached 
by railroad labor and railroad management in March 2001 with 
respect to the implementation of collective bargaining 
agreements in the event of additional mergers. It provides that 
when newly consolidated rail operations involving the 
signatories to the agreement are subject to multiple collective 
bargaining agreements, the labor union parties, rather than the 
rail management parties, may choose which collective bargaining 
agreement will govern the new operations. Codifying this 
agreement would ensure that it will not be set aside by STB-
appointed arbitrators in the event of another round of mergers.

           *       *       *       *       *       *       *

Section 2. Definitions.

    Section 2 would define the key terms, ``Administrator'' and 
``NASA.''

Section 3. Findings.

    Section 3 would identify key findings of the bill 
concerning the history, the future, and the value of programs 
at NASA.

                TITLE I--AUTHORIZATION OF APPROPRIATIONS

Section 101. Exploration capabilities.

    Section 101 would authorize funding in the following areas: 
(1) International Space Station; (2) Space Shuttle; (3) Space 
Flight Support; (4) Transportation Systems; and (5) Human and 
Robotic Technology. The funding amounts for each of these areas 
for FY 2005 through FY 2009 are as shown in Figure 3.

                                         FIGURE 3--Authorization Levels
                                                 (In $ millions)
----------------------------------------------------------------------------------------------------------------
                                                             FY 05      FY 06      FY 07      FY 08      FY 09
----------------------------------------------------------------------------------------------------------------
 Exploration Capabilities
----------------------------------------------------------------------------------------------------------------
    International Space Station                               1,863      1,764      1,780      1,779      2,115
----------------------------------------------------------------------------------------------------------------
    Shuttle                                                   4,319      4,326      4,314      4,027      3,030
----------------------------------------------------------------------------------------------------------------
    Space Flight Support                                        492        435        430        456        453
----------------------------------------------------------------------------------------------------------------
    Transportation Systems                                      689      1,261      1,624      1,423      1,863
----------------------------------------------------------------------------------------------------------------
    Human and Robotic Tech.                                   1,079      1,303      1,301      1,370      1,433
----------------------------------------------------------------------------------------------------------------
Exploration and Aeronautics
----------------------------------------------------------------------------------------------------------------
    Space Science                                             4,138      4,404      4,906      5,520      5,561
----------------------------------------------------------------------------------------------------------------
    Earth Science                                             1,485      1,390      1,368      1,343      1,474
----------------------------------------------------------------------------------------------------------------
    Biological/Physical Research                              1,049        950        938        941        944
----------------------------------------------------------------------------------------------------------------
    Aeronautics Technology                                      919        957        938        926        942
----------------------------------------------------------------------------------------------------------------
    Education                                                   169        169        171        170        170
----------------------------------------------------------------------------------------------------------------
    Inspector General                                            28         29         30         31         32
----------------------------------------------------------------------------------------------------------------
    TEA                                                          15         16         16         16         17
----------------------------------------------------------------------------------------------------------------
TOTAL                                                        16,245     17,003     17,816     18,002     18,034
----------------------------------------------------------------------------------------------------------------

Section 102. Exploration, science, and aeronautics.

    Section 102 would authorize funding in the following areas: 
(1) Space Science; (2) Earth Science; (3) Biological and 
Physical Research; (4) Aeronautics Technology; and (5) 
Education. The funding amounts for each of these areas for FY 
2005 through FY 2009 are as shown in Figure 3.

           *       *       *       *       *       *       *

Section 105. Total authorizations.

    Section 105 would provide the total authorization levels 
for NASA for FY 2005 through FY 2009 and are as shown in Figure 
3. The bill would provide authorizations for a total of five 
years for NASA. Many research projects involved several years 
of effort before results can be realized. The Committee 
acknowledges that many things can change within a five year 
period. Nevertheless, the Committee is concerned that NASA has 
not continued its support for certain research areas for the 
entire duration of the authorization period. During the 
previous NASA authorization act (P.L. 106-391), authorization 
was included for immediate clinical trials for islet 
transplantation in patients with Type I diabetes utilizing 
immunoisolation technologies derived from NASA space flights. 
NASA funded the initial research into this area but failed to 
provide all of the authorized levels prescribed by the 
authorization legislation. The research has progressed 
successfully while NASA has missed an opportunity to support 
the space technology for the development of a bio-mechanical 
system that may be used by medical professionals to treat 
diabetic patients as well as many other hormone deficient 
diseases.

                           VOTES IN COMMITTEE

    Paragraph 7(c) of rule XXVI of the Standing Rules of the 
Senate requires bills or joint resolutions ordered reported by 
a committee to include ``a tabulation of the votes cast by each 
member of the committee in favor or and in opposition to such 
measure or matter.'' The committee report, thus, must include a 
description of, and a list of the votes for and against, any 
amendment considered during mark-up on which there is a 
rollcall vote, as well as any rollcall vote ordering a bill or 
joint resolution to be reported. Any votes made by proxy should 
be indicated as such.
    The description may also include a short statement of any 
measure adopted by voice vote that is subsequently modified by 
action taken by rollcall vote.
    In recent practice (since the 108th Congress) the Committee 
has agreed at the beginning of an executive session to report 
some or all of the bills on the agenda subject to further 
amendment. This is usually phrased as a unanimous consent 
request to a motion, offered typically by the ranking member, 
that the measures be reported ``subject to further 
amendment.''. For reporting purposes, this consent to the 
Chairman's unanimous consent request is treated as if it were a 
voice vote. Occasionally, this practice has extended to include 
the adoption, by voice vote, of a package of amendments 
(usually referred to as ``a manager's amendment'') or a 
substitute amendment ``subject to further amendment''. After 
agreeing to the motion, the Committee may proceed to further 
consideration of the bills ordered reported and may adopt 
additional amendments by voice or rollcall vote. (This is the 
reverse of the Senate floor procedure under which all 
amendments are disposed of before a vote is taken on a bill as 
amended.) A short description of the action taken by voice vote 
will explain more clearly to the reader what the Committee did.
    The Committee clerk keeps a tally sheet record of the 
rollcall votes taken during an executive session and that 
record, kept in the Committee's Public Information Office, is 
part of the official records of the Committee. The Committee's 
Legislative Counsel will prepare and format the list of votes 
for the report, but the description of the subject matter on 
which the vote was taken is written by the committee staff.

                                EXAMPLES

    Senator Ensign offered an amendment, to the amendment (in 
the nature of a substitute) offered by Senator McCain, to 
increase the number of extraperimeter slots at Ronald Reagan 
Washington National Airport. By rollcall vote of 11 yeas and 11 
nays as follows, the amendment was defeated:

        YEAS--11                      NAYS--11
Mr. Stevens\1\                      Ms. Snowe\1\
Mr. Burns                           Mr. Fitzgerald\1\
Mr. Lott                            Mr. Allen
Mrs. Hutchison\1\                   Mr. Hollings
Mr. Brownback\1\                    Mr. Inouye\1\
Mr. Smith                           Mr. Rockefeller
Mr. Ensign                          Mr. Kerry\1\
Mr. Wyden                           Mr. Breaux\1\
Mrs. Boxer                          Mr. Dorgan
Ms. Cantwell                        Mr. Nelson
Mr. McCain                          Mr. Lautenberg

    \1\By proxy

    Senator Boxer offered an amendment, to the amendment (in 
the nature of a substitute) offered by Senator McCain, to 
improve the training requirements for and require the 
certification of cabin crew members. By rollcall vote of 12 
yeas and 10 nays as follows, the amendment was adopted:

        YEAS--12                      NAYS--10
Mr. Smith                           Mr. Burns
Mr. Hollings                        Mr. Lott
Ms. Inouye\1\                       Mrs. Hutchison
Mr. Rockefeller\1\                  Ms. Snowe\1\
Mr. Kerry\1\                        Mr. Brownback
Mr. Breaux\1\                       Mr. Fitzgerald\1\
Mr. Dorgan\1\                       Mr. Ensign
Mr. Wyden\1\                        Mr. Allen
Mrs. Boxer                          Mr. Sununu
Mr. Nelson                          Mr. Lautenberg
Ms. Cantwell
Mr. McCain

    \1\By proxy

      Mr. Hollings made a motion to reconsider the vote by 
which the Ensign amendment was defeated. By rollcall vote of 12 
yeas and 10 nays as follows, Mr. McCain voting present, the 
motion carried:

        YEAS--12                      NAYS--10
Mr. Stevens\1\                      Ms. Snowe\1\
Mr. Burns                           Mr. Fitzgerald\1\
Mr. Lott                            Mr. Allen
Mrs. Hutchison                      Mr. Inouye\1\
Mr. Brownback                       Mr. Rockefeller\1\
Mr. Smith                           Mr. Kerry\1\
Mr. Ensign                          Mr. Breaux\1\
Mr. Sununu                          Mr. Dorgan\1\
Mr. Hollings                        Mr. Nelson
Mr. Wyden\1\                        Mr. Lautenberg
Mrs. Boxer
Ms. Cantwell

    \1\By proxy

    The Committee reconsidered the vote by which the Ensign 
amendment was defeated. By rollcall vote of 12 yeas and 11 nays 
as follows, the amendment was adopted:

        YEAS--12                      NAYS--11
Mr. Stevens\1\                      Ms. Snowe\1\
Mr. Burns                           Mr. Fitzgerald\1\
Mr. Lott                            Mr. Allen
Mrs. Hutchison                      Mr. Hollings
Mr. Brownback                       Mr. Inouye\1\
Mr. Smith                           Mr. Rockefeller
Mr. Ensign                          Mr. Kerry\1\
Mr. Sununu                          Mr. Breaux\1\
Mr. Wyden\1\                        Mr. Dorgan\1\
Mrs. Boxer\1\                       Mr. Nelson
Ms. Cantwell                        Mr. Lautenberg
Mr. McCain

    \1\By proxy

           *       *       *       *       *       *       *

    Senator Breaux offered an amendment to apply the penalties 
for obscene, etc., broadcasting to multichannel video 
programming distributors (other than with respect to pay-per-
view, etc., programming) until the FCC determines that 85 
percent of the households with children are using the V-chip or 
similar technology to block offensive programming or have 
affirmatively opted out of using it. By rollcall vote of 11 
yeas and 12 nays as follows, the amendment was defeated:

        YEAS--11                      NAYS--12
Mr. Lott                            Mr. Stevens
Mr. Ensign                          Mr. Burns
Mr. Hollings                        Mrs. Hutchison
Mr. Rockefeller\1\                  Ms. Snowe\1\
Mr. Kerry\1\                        Mr. Brownback
Mr. Breaux                          Mr. Smith
Mr. Dorgan                          Mr. Fitzgerald
Mr. Wyden                           Mr. Allen
Mrs. Boxer                          Mr. Sununu
Mr. Nelson                          Mr. Inouye
Mr. McCain                          Ms. Cantwell
                                    Mr. Lautenberg\1\

    \1\By proxy

    By a rollcall vote of 23 yeas and 0 nays as follows, the 
bill was ordered reported with amendments:

        YEAS--23                      NAYS--0
Mr. Stevens
Mr. Burns
Mr. Lott
Mrs. Hutchison\1\
Ms. Snowe\1\
Mr. Brownback
Mr. Smith
Mr. Fitzgerald
Mr. Ensign
Mr. Allen
Mr. Sununu\1\
Mr. Hollings
Mr. Inouye
Mr. Rockefeller\1\
Mr. Kerry\1\
Mr. Breaux
Mr. Dorgan
Mr. Wyden
Mrs. Boxer
Mr. Nelson
Ms. Cantwell\1\
Mr. Lautenberg\1\
Mr. McCain

    \1\By proxy


                            AGENCY COMMENTS

    This section of the report is optional. Agency comments 
generally would be received by the Committee in the context of 
a hearing and may be discussed in the legislative history. This 
section, nonetheless, may contain any relevant agency comments 
on a proposed bill or joint resolution submitted by a 
government agency for the Committee's consideration. The 
comments should be printed only if they are particularly 
relevant to the consideration of a portion of the bill, or if 
significant comments were received after the hearing on the 
measure. This section may also be an appropriate place to 
include agency comments submitted in response to a request from 
the Committee during or after the hearing process.
    If the agency comment includes a lengthy attachment, it is 
sufficient to note that the attachment was received and is 
contained in the Committee files.

              SUPPLEMENTAL, MINORITY, AND ADDITIONAL VIEWS

    Paragraph 10(c) of rule XXVI of the Standing Rules of the 
Senate provides that ``If at the time of approval of a measure 
or matter by any committee . . . , any member of the committee 
gives notice of intention to file supplemental, minority, or 
additional views, that member shall be entitled to not less 
than three calendar days in which to file such views. All such 
views so filed by one or more members of the committee shall be 
included within, and shall be made a part of, the report filed 
by the committee with respect to that measure or matter.''
    In recent practice, the Committee has not strictly enforced 
this rule with respect to its reports, and has included 
supplemental, minority, or additional views in its reports 
without regard to whether timely notice has been given and 
without regard to when the views were filed with the committee.
    Supplemental, minority, or additional views may either 
support or disagree with the Committee position on a bill or 
joint resolution. Minority views may only be submitted by a 
Senator who voted against the amendment that is the subject of 
those views or against reporting the bill or resolution.
    Generally, supplemental, minority, or additional views are 
drafted by the staff of the Senator whose views are expressed 
and those views are not subject to editing by committee staff. 
The Senator's staff should deliver a copy of the views directly 
to the Committee's Legislative Counsel, although the staff 
member may wish to provide a courtesy copy to the committee 
staff members responsible for preparing the overall report. It 
is considered inappropriate, however, for the committee staff 
to respond, in the report, to supplemental, minority, or 
additional views submitted by or on behalf of a Senator.

                                EXAMPLES

                  ADDITIONAL VIEWS OF SENATOR HOLLINGS

    I applaud this bill as an attempt to achieve necessary 
reforms in human space flight and to endorse the results of the 
Columbia Accident Investigation Board regarding the management 
and institutional problems that exist at NASA. However, I have 
serious concerns about the redirection given to NASA by this 
Administration and the consequences, unintended though they may 
be, for the future of space in the nation's civil and economic 
endeavors.
    Specifically, I applaud the measures the bill's provisions 
that:
          (1) endorse the results of the Columbia Accident 
        Investigation Board regarding the Shuttle Return-to-
        Flight and other changes at NASA to improve the safety 
        and technical engineering management of the agency;
          (2) authorize an expansion of robotic study and 
        exploration of Earth's solar system;
          (3) call on NASA aggressively to purse a new human 
        crewed vehicle and safe concepts of space flight 
        operation;
          (4) enhance the participation in space and ensure a 
        new spirit of openness and inclusion of the space 
        industry and other nations in NASA's exploration 
        program;
          (5) establish, as a matter of policy, that it is 
        contrary to the interests of the United States to have 
        a sustained period of interruption in U.S. human space 
        flight capabilities that would disrupt relationships 
        with other nations, make industry investments 
        uncertain, introduce discontinuities in science, risk 
        the sustainability of the unique skills acquired over 
        many years among human space flight managers and 
        operations personnel, and allow anyone to question the 
        preeminent status and role of the United States as the 
        world's leader in human space flight operations and 
        engineering; and
          (6) seek to improve NASA program and financial 
        management.
    But the bill does not go far enough in a number of areas 
and, in some, goes too far indeed. The bill endorses NASA's 
program for the next five years and then seeks to create a 
measure of control over NASA spending, priorities, and purposes 
that is illusory at best.
    My own assessment of the cost of NASA's redirection is that 
it sacrifices more than NASA lets on, causing severe 
dislocations to long-standing NASA initiatives in basic 
physics, solar, Earth, and aeronautics research. Moreover, we 
do not know the final price tag of this shift in U.S. space 
policy, and future dislocations that may result.
    While the Administration is undergoing a review of its 
space transportation policy, it has not yet announced which 
Federal agency will be responsible for U.S. space 
transportation in the future. We do not know how NASA's new 
program, focused narrowly on deep space exploration ``beyond 
low Earth orbit,'' relates to the original broader purpose of 
the 1958 Space Act, to establish a single, U.S. civilian agency 
to oversee and sponsor all U.S. research, development, and 
technological advancement in aeronautics and space. If NASA and 
it's $15 billion budget will only be dedicated to planetary 
exploration and not these broader purposes, which agency will 
oversee and perform those activities and where will that 
funding come from? These are questions that all of us in 
Congress have asked ourselves and we do not have the answers.
    Not only do we not have a price tag, we do not have a plan. 
I understand the impetus of those who want us to move out in 
this new direction, restoring credibility and sustainability to 
this pursuit; but I do not understand the urgency and 
impatience. In order to meet the third criteria set out by the 
President's Commission on Implementation of U.S. Space 
Exploration Policy (aka the Aldridge Commission), 
affordability, I do not know how we can proceed to enact five 
years of funding for a program that hasn't even been defined 
yet. As I have said before, this ``go-as-you-pay'' approach is 
merely a license to throw fiscal discipline out the window and 
drag out projects until they never finish, nothing more, 
nothing less.
    Throughout the past year and a half, there have been two 
basic objectives in my approach to NASA and the future of U.S. 
space policy. The first is to rationally address the nation's 
future ambitions in space, given the significance of the loss 
of the Space Shuttle Columbia and the healthy bout of soul-
searching about the future that has engaged the nation. The 
second is to achieve a public accounting for the loss, without 
recrimination but with a steadfast resolve to ensure that the 
circumstances that led us here are never repeated again.
    Sadly, I must say that I have failed in those causes. I 
cannot say that I believe the nation has taken the Columbia 
tragedy to heart, fully contemplating and addressing all the 
antecedents, circumstances, and causes of the failure of this 
institution, this program, and this vehicle. I and others, 
including the members of the Columbia Accident Investigation 
Board, believe that many of these root causes are mired in the 
circumstances of an agency pressed to accomplish too much with 
too little and as a result promising to do more than could 
humanly be delivered. It is not obvious to me, given the events 
that have occurred since the accident, that this cycle has been 
broken.
    Second, it is not clear to me that NASA has fully learned 
the lessons of Columbia and, before it, the common set of 
lessons of the Challenger disaster. I hope, in coming and 
future years, that NASA is able and willing to step back more 
fully from these disasters, once the passion of re-flight is 
past, to listen even more deeply to what the safety, behavioral 
science, and organizational research community is trying to say 
about the demands of being an enduring, high reliability 
organization. No doubt, there is an impressive steadfastness to 
NASA's recovery actions, but true reform is something more to 
achieve than a one or two year set of ``behavioral 
adjustments'' and re-flight events.
    In order to achieve real reform, I believe NASA must make 
fundamental changes in its principles of management and in its 
organization, the distribution of its roles and 
responsibilities, and in the performance of its functions of 
safety in flight operations, not just in its advisory processes 
of safety in development and engineering. This was a core theme 
in the recommendations of the Rogers Commission at the time of 
the Challenger disaster and should now be revisited.
    Lastly, let none of these words discount the bravery and 
earnestness of astronauts and the operators, engineers, and 
safety officials who stand behind them. The strength of NASA 
and our space industry is its people. Together we can move NASA 
forward.

           *       *       *       *       *       *       *

                    MINORITY VIEWS OF SENATOR ALLEN

    S.1963 is unnecessary and counterproductive for an industry 
that has a proven track record of innovation, lower prices, and 
protecting consumer privacy. The six largest wireless carriers, 
representing more than three-quarters of all subscribers, \1\ 
have specifically committed to this Committee that they will 
safeguard the privacy of wireless phone numbers, either by 
creating a directory assistance database that includes only the 
numbers of subscribers who affirmatively choose to be listed 
through an opt-in method or by not participating in any 
wireless directory assistance program. Those carriers who are 
planning a database have further committed not to charge 
subscribers who elect to keep their wireless numbers unlisted 
or if they elect to remove their numbers from the database. In 
testimony before the Committee, the wireless industry also 
assured us that wireless numbers from the directory assistance 
database will not be published in a directory and that the 
aggregated database will not be sold to any third-party or be 
available anywhere on the Internet. Finally, child privacy will 
be protected because customers must be 18 years or older to 
sign a contract and choose whether to be listed in the 
database. In the face of these commitments, I see no need for 
the bill.
---------------------------------------------------------------------------
    \1\ Implementation of Section 6002(b) of the Omnibus Budget 
Reconciliation Act of 1993; Annual Report and Analysis of Competitive 
Market Conditions With Respect to Commercial Mobile Service, Ninth 
Report, FCC 04-216 Paragraph 20 and Table 4 (rel. Sept. 28, 2004).
---------------------------------------------------------------------------
    Legislating in advance of any evidence of a problem is not 
only unnecessary in this case, it is also counterproductive. 
The wireless industry has thrived in the deregulatory 
environment established by Congress in 1993 and is now one of 
the country's most competitive businesses. More than 90 percent 
of Americans live in markets served by four or more wireless 
operators, and a nearly ubiquitous 98 percent of Americans live 
in a market served by three or more operators. Competition has 
driven wireless carriers to offer better service at lower 
prices. Carriers compete on the basis of service and feature 
options and calling plans, including lower prices, free 
voicemail, caller ID, and 3-way calling. Competitive forces in 
the wireless industry will discipline market participants more 
effectively than any regulator or regulation can.
    Imposing government rules for a wireless service offering 
would represent a marked and unjustified departure from the 
successful bipartisan policy of deregulation. Faced with 
unnecessary government regulation, carriers may decide not to 
offer a directory assistance database at all, leaving small 
businesses and others who rely substantially or even 
exclusively on their wireless phones no other choice but to pay 
to have their number listed in a landline directory--if they 
have that option at all, which many do not. The bill may even 
deter future innovations and industry initiatives for fear 
government mandates will be added even before the first 
customer signs up.
    Representative of the problems with this bill is the 
requirement that all telecommunications carriers, wireline as 
well as wireless, ``mask'' wireless telephone number 
information in the bills they send to their customers. While 
seemingly innocuous, compliance with this mandate would be 
costly and onerous. Carriers would essentially have to create a 
separate database of customers who elected not to have their 
number included in the directory assistance database, and every 
wireline and wireless carrier would have to check bills against 
that database to remove any numbers of customers who had not 
opted into the directory. No carrier currently has the 
technology to create the required database, query it, and 
reflect the results on bills. Requiring the creation of a 
separate database as a condition of providing directory 
assistance creates a very real risk that the entire directory 
assistance project will be deferred or even abandoned, to the 
detriment of consumers who desire such a resource.
    Let me be clear that consumer privacy must be effectively 
protected, in the context of wireless services and otherwise. 
If wireless carriers do not act in conformance with the 
commitments they have made to us, I would not hesitate to 
support remedial legislation. In this case, however, passing a 
law when there no evidence of harm and every indication that 
statutory intervention is unneeded not only puts the cart 
before the horse, it will discourage the private sector from 
even trying to develop non-regulatory solutions to such matters 
as privacy protection. For these reasons, I oppose S. 1963.

           *       *       *       *       *       *       *

        ADDITIONAL VIEWS OF SENATOR MCCAIN AND SENATOR HOLLINGS

    During the Committee's consideration of S. 2645, it was the 
Committee's intent to adopt an amendment offered by Senators 
McCain and Hollings to increase the authorization amounts and 
make other changes to the underlying bill. Due to the 
invocation of a Senate rule, the consideration of amendments to 
this bill was prevented. It is our expectation and hope, 
however, that this amendment will be agreed to and accepted as 
this legislation receives further consideration before the full 
Senate.
    The amendment would authorize the CPB's annual funding 
account at the following levels:
     $428 million for FY 2007;
     $458 million for FY 2008;
     $490 million for FY 2009;
     $524 million for FY 2010; and
     $560 million for FY 2011.
    The amendment would authorize the Department of Commerce's 
PTFP program at the following levels:
     $50,000,000 for FY 2005;
     $53,500,000 for FY 2006;
     $57,240,000 for FY 2007;
     $61,240,000 for FY 2008;
     $64,200,000 for FY 2009;
     $68,480,000 for FY 2010; and
     $73,270,000 for FY 2011.
    The amendment would also add an additional section to the 
bill relating to representatives, organizations, affinity 
groups, and rural communities.
    Under current law, a nine-person Board of Directors governs 
CPB, sets policy, and establishes programming priorities. Only 
five members of the board at any time may be from one political 
party. The President appoints each member, who, after 
confirmation by the Senate, serves a six-year term. By statute, 
Board members must be United States citizens who are ``eminent 
in such fields as education, cultural and civic affairs, or the 
arts, including radio and television''. (47 U.S.C. 396(c)(2)) 
Additionally, at least two members of the Board must be persons 
representing public broadcasting licensees.
    The additional section would amend the law to clarify that 
at least one of the nine-member CPB Board should be selected 
from among individuals who represent the licensees and 
permittees of public television stations, and that at least one 
additional CPB Board member should be selected from among 
individuals who represent the licensees and permittees of 
public radio stations. Although the President has full 
discretion in selecting his nominees to the CPB Board, the 
President is urged to give consideration to the suggestions 
made by the licensees and permittees. Additionally, the 
Committee encourages the President to select board members who 
represent the diverse geography of licensees and permittees--
rural, urban, non-contiguous States, territories, and Native 
American reservations.
    In addition, to ensure that CPB's funding priorities are 
responsive to the needs of local stations and the communities 
they serve, this section would amend various portions of the 
law to require consultation with public radio and television 
licensees and representatives designated by their national 
organizations when allocating money from CPB's national 
programming fund, its digital fund, the fund for Community 
Service Grants, and the Interconnection Fund. Organizations 
like APTS, PBS, and NPR are member service organizations that 
represent the vast majority of local stations. They have 
elected boards that are representative of the diversity of 
types of local stations and can play a constructive role in 
assisting CPB with developing policies and procedures that will 
enhance localism and service to communities.

                        CHANGES IN EXISTING LAW

    Paragraph 12 of rule XXVI of the Standing Rules of the 
Senate requires that whenever a committee reports a bill or 
joint resolution repealing or amending any statute, the reports 
shall include ``(a) the text of the statute or part thereof 
which is proposed to be repealed; and (b) a comparative print 
of that part of the bill or joint resolution proposed to be 
amended, showing by stricken-through type and italics, parallel 
columns, or other appropriate typographical devices the 
omissions and insertions which would be made by the bill or 
joint resolution.'' This rule is commonly referred to in the 
Senate as the ``Cordon Rule''. A similar rule in the House of 
Representatives is commonly known as the ``Ramseyer Rule''.
    As with the statement of estimated costs and the regulatory 
impact statement, this part of the report may be waived by the 
committee where ``in the opinion of the committee, it is 
necessary to dispense with the requirements . . . to expedite 
the business of the Senate''.
    It is important to distinguish between a provision 
contained in a bill or joint resolution that repeals or amends 
an existing provision of law--which should be shown in this 
part of the report--and a provision contained in a bill or 
joint resolution that, if enacted, would become law without 
changing the text of any existing statute. The latter, often 
referred to as a ``stand-alone provision'' is not shown in this 
part, notwithstanding the fact that its enactment would create 
a new provision of Federal law, because it does not alter or 
repeal the text of an existing statute.
    If the bill or joint resolution, as ordered reported, does 
not alter or repeal the text of an existing statute, then the 
report should state that the bill or joint resolution makes no 
change in existing law.
    This section of the report is prepared by the Committee's 
Legislative Counsel, based on the final pre-filing version of 
the bill or joint resolution as ordered reported.
    The waiver language is as follows:
          In compliance with paragraph 12 of rule XXVI of the 
        Standing Rules of the Senate, the Committee states 
        that, in its opinion, it is necessary to dispense with 
        the requirements of that paragraph in order to expedite 
        the business of the Senate.
    The no change language is as follows:
          In compliance with paragraph 12 of rule XXVI of the 
        Standing Rules of the Senate, the Committee states that 
        the bill as reported would make no change to existing 
        law.

                                EXAMPLES

               [Modification of existing statutory text]

                        Changes In Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, 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 
material 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

    PART IV. ASSISTANCE FOR PUBLIC TELECOMMUNICATIONS, FACILITIES; 
 TELECOMMUNICATIONS DEMONSTRATIONS; CORPORATION FOR PUBLIC BROADCASTING

     Subpart A--Assistance for Public Telecommunications Facilities

SEC. 391. AUTHORIZATION OF APPROPRIATIONS.

                            [47 U.S.C. 391]

      There are authorized to be appropriated [$42,000,000 for 
each of the fiscal years 1992, 1993, and 1994,] $50,000,000 for 
fiscal year 2005, $52,000,000 for fiscal year 2006, $54,008,000 
for fiscal year 2007, $56,240,000 for fiscal year 2008, 
$58,490,000 for fiscal year 2009, $60,820,000 for fiscal year 
2010, and $63,250,000 for fiscal year 2011, to be used by the 
Secretary of Commerce to assist in the planning and 
construction of public telecommunications [facilities] 
facilities, including analog and digital broadcast facilities 
and equipment, as provided in this subpart. Sums appropriated 
under this subpart for any fiscal year shall remain available 
until expended for payment of grants for projects for which 
applications approved by the Secretary pursuant to this subpart 
have been submitted within such fiscal year. Sums appropriated 
under this subpart may be used by the Secretary to cover the 
cost of administering the provisions of this subpart.

           *       *       *       *       *       *       *


                       [Addition of new section]

                        Changes In Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, 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 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

                        CHAPTER. 63. MAIL FRAUD

Sec. 1351. Commercial electronic mail containing fraudulent 
                    transmission information

    (a) In General.--Any person who initiates the transmission, 
to a protected computer in the United States, of a commercial 
electronic mail message, with knowledge and intent that the 
message contains or is accompanied by header information that 
is materially false or materially misleading shall be fined or 
imprisoned for not more than 1 year, or both, under this title. 
For purposes of this subsection, header information that is 
technically accurate but includes an originating electronic 
mail address the access to which for purposes of initiating the 
message was obtained by means of false or fraudulent pretense 
or representations, shall be considered materially misleading.
    (b) Definitions.-- Any term used in subsection (a) that is 
defined in section 3 of the CAN-SPAM Act of 2003 has the 
meaning given it in that section.

           *       *       *       *       *       *       *

                          [Repeal of section]

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, 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 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED 
                   AGENCIES APPROPRIATIONS ACT, 2001

         [PUBLIC LAW 106-553, APPENDIX B; 114 STAT. 2762A-111]

    [Sec. 632. (a)(1) The Federal Communications Commission 
shall modify the rules authorizing the operation of low-power 
FM radio stations, as proposed in MM Docket No. 99-25, to--
          [(A) prescribe minimum distance separations for 
        third-adjacent channels (as well as for co-channels and 
        first- and second-adjacent channels); and
          [(B) prohibit any applicant from obtaining a low-
        power FM license if the applicant has engaged in any 
        manner in the unlicensed operation of any station in 
        violation of section 301 of the Communications Act of 
        1934 (47 U.S.C. 301).
    [(2) The Federal Communications Commission may not--
          [(A) eliminate or reduce the minimum distance 
        separations for third-adjacent channels required by 
        paragraph (1)(A); or
          [(B) extend the eligibility for application for low-
        power FM stations beyond the organizations and entities 
        as proposed in MM Docket No. 99-25 (47 CFR 73.853), 
        except as expressly authorized by an Act of Congress 
        enacted after the date of the enactment of this Act.
          [(3) Any license that was issued by the Commission to 
        a low-power FM station prior to the date on which the 
        Commission modifies its rules as required by paragraph 
        (1) and that does not comply with such modifications 
        shall be invalid.
    [(b)(1) The Federal Communications Commission shall conduct 
an experimental program to test whether low-power FM radio 
stations will result in harmful interference to existing FM 
radio stations if such stations are not subject to the minimum 
distance separations for third-adjacent channels required by 
subsection (a). The Commission shall conduct such test in no 
more than nine FM radio markets, including urban, suburban, and 
rural markets, by waiving the minimum distance separations for 
third-adjacent channels for the stations that are the subject 
of the experimental program. At least one of the stations shall 
be selected for the purpose of evaluating whether minimum 
distance separations for third-adjacent channels are needed for 
FM translator stations. The Commission may, consistent with the 
public interest, continue after the conclusion of the 
experimental program to waive the minimum distance separations 
for third-adjacent channels for the stations that are the 
subject of the experimental program.
    [(2) The Commission shall select an independent testing 
entity to conduct field tests in the markets of the stations in 
the experimental program under paragraph (1). Such field tests 
shall include--
          [(A) an opportunity for the public to comment on 
        interference; and
          [(B) independent audience listening tests to 
        determine what is objectionable and harmful 
        interference to the average radio listener.
    [(3) The Commission shall publish the results of the 
experimental program and field tests and afford an opportunity 
for the public to comment on such results. The Federal 
Communications Commission shall submit a report on the 
experimental program and field tests to the Committee on 
Commerce of the House of Representatives and the Committee on 
Commerce, Science, and Transportation of the Senate not later 
than February 1, 2001. Such report shall include--
          [(A) an analysis of the experimental program and 
        field tests and of the public comment received by the 
        Commission;
          [(B) an evaluation of the impact of the modification 
        or elimination of minimum distance separations for 
        third-adjacent channels on--
                  [(i) listening audiences;
                  [(ii) incumbent FM radio broadcasters in 
                general, and on minority and small market 
                broadcasters in particular, including an 
                analysis of the economic impact on such 
                broadcasters;
                  [(iii) the transition to digital radio for 
                terrestrial radio broadcasters;
                  [(iv) stations that provide a reading service 
                for the blind to the public; and
                  [(v) FM radio translator stations;
          [(C) the Commission's recommendations to the Congress 
        to reduce or eliminate the minimum distance separations 
        for third-adjacent channels required by subsection (a); 
        and
          [(D) such other information and recommendations as 
        the Commission considers appropriate.]

           *       *       *       *       *       *       *

                        [No amendment or repeal]

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, the Committee states that the bill as 
reported would make no change to existing law.

                    VERY SHORT OR VERY LONG MEASURES

    If a bill is very short or very long, it is appropriate to 
modify the report format as necessary.
    For very short bills, sections may be combined or omitted 
if this would prevent needless repetition of material that has 
already been presented. There is nothing wrong with a 1-page 
report if one is dealing with a routine, 1-paragraph bill 
establishing National Salt Water Taffy Week. The summary of 
major provisions section is frequently omitted in shorter bills 
that do not really have major and minor provisions. A report 
does not need separate sections for background and needs, a 
summary of major provisions, and a section-by-section analysis 
if it is to accompany a one section bill that merely 
reauthorizes appropriations for the Federal Widget Commission.
    For particularly long, complex, or controversial bills 
(such as transportation deregulation, telecommunications 
reform, or broadcast obscenity rules), it is appropriate to 
expand the report to deal with, e.g., different industry 
segments or constitutional issues raised by the measure.
    A long report is not very helpful if the reader is unable 
to find needed information quickly and easily. The general 
proposition that information should be presented as concisely 
and clearly as possible applies with special emphasis in a 
longer report.
    Special care should be taken to limit the discussion to 
essential material and to rework that discussion until it is as 
clear and concise as possible. Short paragraphs, the frequent 
use of headings and subheadings, bullet points, and even a 
table of contents will aid the reader in finding needed 
information quickly.
    Make sure, as nearly as possible, that the discussion of 
each major issue occurs in one easily located place in the 
report, rather than being fragmented and scattered throughout 
the report. If a point needs to be re-emphasized, a cross-
reference to the appropriate portion of the earlier discussion 
is generally preferable to restating the matter. Bear in mind 
that the purpose of the report is to present, in a clear and 
usable fashion, material that is essential to understanding the 
legislative measure.
    For long, controversial, and complex legislation, one may 
need to add sections to the report in addition to the sections 
discussed previously in this guide in order to keep it well 
organized and present the essential material. For example, if a 
bill was the subject of prolonged and unusual consideration 
before the Committee, this activity may be described in a 
concise fashion under the heading ``Committee Consideration''. 
Similarly, if the bill was significantly altered by numerous 
amendments in the mark-up, the most significant amendments 
might be explained under the heading ``Committee Amendments''. 
Other, less significant, amendments may be dispensed with by 
including a notation that the Committee also adopted several 
minor, technical, or conforming amendments.
    If a bill is unusually important or significant, the 
section on ``Background and Needs'' may be expanded to include 
a longer, well-organized discussion of the need for the 
legislation. Finally, if a bill is particularly controversial, 
the report may contain a section entitled ``Major Issues'' 
which briefly discusses the most important issues in the 
measure.
    When you begin to enlarge sections or add new sections to a 
report, it may be necessary to rearrange the order of the 
sections. This is permissible if the final report is easy to 
read and organized in a logical fashion. You should be certain, 
however, that the reader is given a proper introduction at the 
beginning of the report. This means there should be a simple, 
brief, and clear statement of the major thrust of the 
legislation, the need for the legislation, and the major 
provisions of the legislation before the reader reaches any 
long or detailed discussions.

                         SHORT MEASURE EXAMPLE

                          Purpose of the Bill

    The purpose of S. 886, the National Oceanic and Atmospheric 
Administration (NOAA) Corps Confirmation Correction 
Legislation, is to ratify the otherwise legal appointments and 
promotions in the commissioned corps of NOAA that failed to be 
submitted to the Senate for its advice and consent as required 
by law.

                          Background and Needs

    The NOAA Corps is the smallest of the seven uniformed 
services of the United States (the others are the four 
Department of Defense services, the Coast Guard, and the Public 
Health Service). The NOAA Corps is comprised of slightly over 
250 commissioned officers and operates a wide variety of 
specialized aircraft and ships used to conduct NOAA's 
environmental and scientific missions. Its commissioned 
officers provide NOAA with an important blend of operational, 
management, and technical skills that support the agency's 
science and surveying programs at sea, in the air, and ashore. 
Corps officers operate and manage NOAA's ships and aircraft as 
well as serve in the agency's research laboratories and program 
offices throughout the nation and in remote locations around 
the world.
    The NOAA Corps officer appointments and promotions are 
similar to the other uniformed services and, under section 226 
of the National Oceanic and Atmospheric Administration 
Commissioned Officer Corps Act of 2002 (33 U.S.C. 3026) and its 
antecedent, require nomination by the President and must be 
submitted to the Senate for its advice and consent. 
Historically, the Commerce Committee has considered NOAA 
promotions, along with routine Coast Guard officer promotions, 
during Full Committee Executive Sessions.
    It recently came to the Committee's attention that NOAA has 
failed since October 1, 1999, to submit any of its NOAA Corps 
officer appointments and promotions to the President for 
nomination and subsequently to the Senate for its advice and 
consent. Since then, the NOAA Corps has made approximately 251 
appointments and promotions, involving approximately 196 
officers. An ongoing Department of Commerce investigation 
indicates these procedural problems may have existed prior to 
October 1, 1999, and additional officers' appointments and 
promotions may also be affected. These revelations raise 
serious questions concerning the validity of these appointments 
and promotions that could affect each individual officer's pay, 
entitlements, job status, and the ability to carry out the 
officer's official actions.
    To address this serious situation, the legislation is 
designed to provide a framework for retroactive appointments 
and promotions for the affected officers in a manner that will 
protect the professional and financial aspects of their 
positions, and that will ensure that all past actions taken in 
the line of duty by such officers after their appointments and/
or promotions are considered to have been official actions. The 
bill states that all actions performed in the line of duty by 
these NOAA corps officers are ratified and approved. In 
addition, the legislation states that all Federal agency 
actions (with respect to pay, benefits, and retirement) in 
relation to an unconfirmed NOAA corps officer shall be 
considered legally binding.
    The bill provides that the President, acting alone, can 
make appointments and promotions for up to 180 days to allow 
these officers to maintain their status until the full Senate 
gives its advice and consent for these appointments and 
promotions going forward. Once this bill is enacted into law, 
the Administration is expected to submit the list of these 
officers to the Senate for its advice and consent.

                          Legislative History

    S. 886 was introduced on April 10, 2003, by Senators 
McCain, Hollings, Snowe, and Kerry, and referred to the Senate 
Committee on Commerce, Science, and Transportation. On May 1, 
2003, the bill was considered by the Committee in an open 
executive session. The Committee, without objection, ordered S. 
886 reported without amendments.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                       [Omitted in this example]

                      Regulatory Impact Statement

    Because S. 886 does not create any new programs, the 
legislation would have no additional regulatory impact, and 
will result in no additional reporting requirements. The 
legislation would have no further effect on the number or types 
of individuals and businesses regulated, the economic impact of 
such regulation, the personal privacy of affected individuals, 
or the paperwork required from such individuals and businesses.

                    Section-by-Section Analysis \3\
---------------------------------------------------------------------------

    \3\ This example could be further shortened by omitting the 
Section-by-Section Analysis, as it essentially repeats the statement of 
purpose.
---------------------------------------------------------------------------
Section 1. Ratification of certain NOAA appointments, promotions, and 
        actions.
    This section would ratify otherwise legal appointments and 
promotions in the commissioned corps of the National Oceanic 
and Atmospheric Administration that failed to be submitted to 
the Senate for its advice and consent as required by law.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
bill as reported would make no change to existing law.

                     CONTROVERSIAL MEASURE EXAMPLE

                          Background and Needs

    Since the inception of the Commission, Congress has been 
concerned with indecent and obscene material broadcast over the 
airwaves. Both the Radio Act of 1927 and The Communications Act 
of 1934 (the Act) vested the agency with the authority to 
regulate obscene, indecent, and profane material. In 1948, 
Congress codified section 1464 in the criminal code, which 
states, ``Whoever utters any obscene, indecent, or profane 
language by means of radio communication shall be fined under 
this title or imprisoned not more than two years, or both.''
    The FCC is charged with enforcing section 1464 and has 
promulgated rules prohibiting radio and television stations 
from broadcasting indecent material between 6 a.m. and 10 p.m. 
For those who violate the rules, the FCC may issue warnings, 
impose monetary fines (up to $27,500 for each violation or up 
to $275,000 for a continuing violation for a broadcast station 
licensees and $11,000 for non-licensees who have received a 
prior warning, i.e. performers), or revoke licenses for the 
airing of indecent material.
    The increase in the number of indecency complaints filed at 
the Commission demonstrates the public's concern over the 
recent surge in indecent content on radio and television. The 
number of complaints increased from 111 in 2000 to 2,240,350 in 
2003. The number of complaints filed in 2004 is on pace to 
exceed the number filed in 2003.
    A study conducted by the Parents Television Council (PTC), 
and published in its report titled, ``The Blue Tube: Foul 
Language on Prime Time Network TV,'' concluded that ``foul 
language during the Family Hour [8 p.m. to 9 p.m.] increased by 
94.8 percent between 1998 and 2002.'' The pervasiveness of 
indecent material has fueled competition among broadcasters to 
push the envelope for more and more questionable content. As 
described in the PTC report: ``Once the initial taboo is broken 
and the shock value wears off, more and more curse words fall 
into the category of `acceptable' language, and TV must try to 
up the ante by introducing new words to prime time TV's obscene 
lexicon.''
    Due to the increase in complaints, the Commission has 
indicated recently a willingness to toughen its enforcement 
against the broadcasting of indecent and obscene material. 
However, besides a paltry 10 percent increase for inflation, 
these statutory limits on fines have not been increased since 
1991. As a result, the current statutory limits on fines, even 
if they are enforced more rigorously, appear to be a mere cost 
of doing business rather than a deterrent to broadcasting 
obscene, indecent, or profane material. S. 2056 was introduced 
to enhance the FCC's enforcement capability by increasing these 
fines.
    While the FCC has rules, although deficient, governing the 
broadcasting of indecent programming, it has not adopted 
similar regulations to protect children from exposure to 
violent programming on television. The Telecommunications Act 
of 1996 (1996 Act) included a provision requiring all 
television sets manufactured after January 1, 2000, to contain 
a ``V-Chip,'' a feature that provides parents with the ability 
to block the display of certain programming based on a 
program's rating. An April 2000 survey conducted by the Kaiser 
Family Foundation, found that only 9 percent of parents of 
children ages 2-17 had a television with a V-Chip, only 3 
percent of all parents had ever used the V-Chip to block 
programming, and 39 percent of parents surveyed had never heard 
of the V-Chip.
    The American Psychological Association (APA) reports that 
by the time a child who watches 2 to 4 hours of television 
daily leaves elementary school, he or she will witness at least 
8,000 murders and more than 100,000 other assorted acts of 
violence on television. Psychological research has also shown 
that children who watch violence on television may become less 
sensitive to the pain and suffering of others, may be more 
fearful of the world around them, and may be more likely to 
behave in aggressive or harmful ways toward others.

            I. INDECENT PROGRAMMING ON RADIO AND TELEVISION

                        A. INDECENCY REGULATION

    The FCC defines ``indecent speech'' as ``language or 
material that, in context, depicts or describes, in terms 
patently offensive as measured by contemporary community 
standards for the broadcast medium, sexual or excretory 
activities or organs.'' In applying the ``community standards'' 
criterion, the FCC has stated, ``the determination as to 
whether certain programming is patently offensive is not a 
local one and does not encompass any particular geographic 
area. Rather, the standard is that of an average broadcast 
viewer or listener and not the sensibilities of any individual 
complainant.'' \1\ Additionally, to be found indecent the 
material must be broadcast at a time of day when children are 
likely to be in the audience--between the hours of 6 a.m. and 
10 p.m.\2\
-----------------------------------------------------------------------
    \1\ Industry Guidance on the Commission's Case Law Interpreting 18 
U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency, 
Policy Statement, 16 FCC Rcd 7999 (2001).
    \2\ Action for Children's Television v. FCC, 58 F.3d 654, (D.C. 
Cir. 1995), herein after ACT IV.
-----------------------------------------------------------------------
    The Supreme Court decision establishing the judicial 
foundation for the FCC's indecency enforcement authority, is 
FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, 
the Supreme Court upheld an FCC ruling finding indecent, but 
not obscene, a twelve-minute routine by comedian George Carlin. 
Upholding the FCC's actions, the Supreme Court emphasized the 
fact that the broadcast media pervades society and that once 
unexpected program content is heard, the damage is done: ``To 
say that one may avoid further offense by turning off the radio 
when he hears indecent language is like saying that the remedy 
for an assault is to run away after the first blow.'' 
Additionally, the Court noted that ``broadcasting is uniquely 
accessible to children, even those too young to read,'' and 
that the government's interest in the well-being of its youth 
and in supporting parental control in the household justified 
regulation. As a result, the Court found that under these 
circumstances, the FCC could sanction those who broadcast 
indecent--even if not obscene--language.

                    B. COMMISSION ENFORCEMENT ACTION

    Some critics argue that the current process is largely 
ineffective and puts too many burdens on complainants. In 
particular, these critics note that in 2003 the FCC received 
about 240,000 complaints concerning approximately 375 radio and 
television programs, and issued a total of 3 fines. The 
indecency complaint process also has been criticized for 
allowing complaints to languish, which has in some cases 
resulted in the FCC being forced to dismiss a complaint because 
the statute of limitations has run. Since 2000, the number of 
indecency complaints has risen to a record high.

----------------------------------------------------------------------------------------------------------------
                                                                              No. of       No. of
                                                                 No. of      programs    complaints     No. of
                            Year                               complaints   reflected    denied or    complaints
                                                                received     in such     dismissed    pending at
                                                                            complaints  by year-end    year-end
----------------------------------------------------------------------------------------------------------------
2004........................................................      530,885           23  ...........  ...........
2003........................................................    2,240,350          318          368      239,982
2002........................................................       13,922          345       13,258          664
2001........................................................          346          152          242          104
2000........................................................          111          101           37           72
----------------------------------------------------------------------------------------------------------------

    Until 2003, the highest indecency fine the FCC had imposed 
was $35,000 to WQAM (Miami, FL) for a five-day indecent 
broadcast. In 1995, the FCC issued Notices of Apparent 
Liability (NAL) of $400,000, $500,000, and $600,000 against 
Infinity Broadcasting Corporation, (Infinity, a unit of Viacom, 
Inc.) involving ``The Howard Stern Show,'' but the forfeitures 
were never actually recorded because the company entered into a 
settlement agreement instead for more than $1.7 million.
    Recently, the Commission has imposed the statutory maximum 
fine of $27,500 in numerous instances.

           In April 2003, the FCC proposed the 
        statutory maximum fine of $27,500 against Infinity for 
        the broadcast of explicit and graphic sexual 
        references, including references to anal and oral sex, 
        as well as explicit and graphic references to sexual 
        practices that involve excretory activities. In 
        addition, the FCC stated that given the egregiousness 
        of this violation, additional serious violations by 
        Infinity might lead to the initiation of a license 
        revocation proceeding. While Infinity challenged the 
        proposed fine, the FCC rejected this challenge and 
        issued a forfeiture order on December 8, 2003.
           In October 2003, Infinity was fined $357,500 
        for airing a description of a couple allegedly having 
        sex in St. Patrick's Cathedral in New York City. The 
        broadcast was part of a contest among five couples who 
        were challenged by station personnel to have sex in 
        several places specified by the station, including St. 
        Patrick's Cathedral. The FCC said the forfeiture was 
        the largest amount permitted by the Act based on the 
        legal facts of the case, and therefore fined the 
        thirteen Infinity stations that aired the program 
        $27,500 each.
           In October 2003, the FCC issued a $55,000 
        forfeiture against AM/FM Radio Licensees, which is 
        controlled by Clear Channel Communications, Inc. (Clear 
        Channel), for airing a program in which the hosts 
        questioned two high school girls about the sex lives of 
        students and school administrators.
           In January 2004, the FCC issued its largest 
        forfeiture ever for $755,000 against Clear Channel for 
        airing indecent material in connection with the ``Bubba 
        the Love Sponge'' program. The forfeiture assessed the 
        statutory maximum of $27,500 to each of the 26 Clear 
        Channel stations that aired the indecent material, and 
        the base amount of $10,000 each for four public file 
        violations ($40,000).
           During the 2004 Super Bowl, Janet Jackson's 
        breast was exposed during her halftime duet with Justin 
        Timberlake. Viacom's CBS television network, which 
        aired the show, and Viacom's MTV, which produced the 
        halftime show, apologized for what they describe as an 
        ``unscripted moment.'' CBS estimates that some 140 
        million Americans tuned into the game, which would make 
        it the most-watched Super Bowl in history. FCC Chairman 
        Michael C. Powell issued a statement the following 
        morning, calling the incident a ``classless, crass and 
        deplorable stunt'' and instructed the Commission to 
        open an immediate investigation on its own motion. The 
        FCC has received more than 500,000 complaints about the 
        Super Bowl halftime show. Chairman Powell's probe could 
        result in fines against CBS's 20 owned and operated 
        stations and the more than 200 affiliate stations that 
        aired the broadcast. If the Commission levies the 
        maximum $27,500 fine, CBS affiliates would have to pay 
        $5.5 million, about the cost of two Super Bowl ads, 
        while CBS, through its owned stations, would be fined 
        approximately $550,000.

    Even with the FCC's recent actions on indecency, many 
critics have suggested that the fines are merely the ``cost of 
doing business'' for these large companies. Commissioner 
Michael J. Copps has declared in a recent statement:

          . . . a mere $27,500 fine for each incident . . . 
        such a fine will be easily absorbed as a ``cost of 
        doing business'' and fails to send a message that the 
        Commission is serious about enforcing the nation's 
        indecency laws. ``Cost of doing business'' fines are 
        never going to stop the media's slide to the bottom.\3\
-----------------------------------------------------------------------
    \3\ Notice of Apparent Liability for Forfeiture Clear Channel 
Broadcasting Licenses, Inc., Separate Statement of Commissioner Michael 
J. Copps, Dissenting, 19 FCC Rcd 1768, (rel. Jan. 27, 2004).
-----------------------------------------------------------------------
    The following chart compares the Commission's current fines 
to the various companies' revenues.


----------------------------------------------------------------------------------------------------------------
                                           2002: Amount of                     2003: Amount of
              Station owner               fines (number of   Company revenue  fines (number of  Company revenues
                                               fines)           for 2002           fines)           for 2003
----------------------------------------------------------------------------------------------------------------
Clear Channel...........................                $0    $8,093,000,000        $1,057,500    $8,042,000,000
Infinity................................            21,000    24,600,000,000           412,500    26,600,000,000
Entercom................................            14,000       391,300,000                 0       401,100,000
Emmis...................................            28,000       533,800,000                 0               N/A
----------------------------------------------------------------------------------------------------------------

    While the FCC has moved to assess the maximum fine in 
certain cases, the Commission has not utilized its authority to 
issue fines for violations on a per utterance basis, to 
initiate license revocations, or to further develop a 
consistent and aggressive approach to combating indecency. In 
October, the FCC's Enforcement Bureau determined that rock star 
Bono's use of the ``F'' word on a live national broadcast was 
not indecent because it did not appeal to the ``prurient 
interest'' since the term was used as an adjective. Shortly 
thereafter, the House of Representatives and Senate both passed 
forth resolutions expressing a sense that there is no support 
for, ``the lowering of standards or weakening of rules by the 
FCC prohibiting obscene and indecent broadcasts to allow 
network or other communications to use language that is 
indecent or vulgar'' and requested that the FCC Commissioners 
reverse the Enforcement Bureau's decision.\4\ On March, 3, 
2004, the FCC reversed the Enforcement Bureau's decision 
stating that any use of the ``F'' word violates the FCC's 
indecency rules.\5\
-----------------------------------------------------------------------
    \4\ See H. Res. 482 and H. Res. 500, and S. Res. 283 (2003).
    \5\ Complaints of various broadcast licensee r.e. airing of 
``Golden Globe Awards'' Program, Memorandum Opinion and Order, FCC 04-
43.
-----------------------------------------------------------------------

              C. POSSIBLE RELATIONSHIP TO MEDIA OWNERSHIP

    The number of indecency complaints has risen during a 
period when the number of owners of media outlets has 
decreased. As a result, the Committee has become concerned that 
there may be a possible connection between the increased 
consolidation of owners in the media industry and the increased 
number of complaints on indecent programming. For example, 
Clear Channel, which was assessed the largest fine ever issued 
by the FCC, went from owning 512 stations in 1999 to over 1,200 
stations in 2004. Other radio station group owners also have 
increased their ownership holdings over the same period. 
Infinity went from owning 163 stations in 1999 to owning 180 in 
2004; Citadel went from 108 stations in 1999 to 213 stations in 
2004; Cummlus Media, Inc. went from owning 232 in 1999 to 301 
in 2004; and Entercom Communications Corporation went from 
owning 42 in 1999 to 104 in 2004.
    Consumers Union and PTC have testified before the Committee 
on the relationship between increased media consolidation and a 
coarsening of content on the airwaves. Gene Kimmelman of 
Consumers Union wrote to the Committee in a letter dated March 
8, 2004, ``Realistic media ownership rules must be in place to 
lessen the influence of massive corporations on local broadcast 
content, as well as to ensure public debate in the local media, 
including newspapers.'' \6\ At a July 23, 2003, hearing, Brent 
Bozell of PTC testified, ``There are many reasons not to give 
these six mega-corporations even more control of our airwaves, 
one of them being their utter lack of attentiveness to 
community standards.''
-----------------------------------------------------------------------
    \6\  See www.consumerunion.org/pub/core--telecom--and--utilities/
000901.html
-----------------------------------------------------------------------

                 II. VIOLENT PROGRAMMING ON TELEVISION

                A. IMPACT OF MEDIA VIOLENCE ON CHILDREN

    The impact of media violence on children has been studied 
since motion pictures were created during the 1920s. The 
primary concern at that time was whether certain scenes 
containing sexual or violent content undermined moral 
standards. A few years later, a study suggested that there was 
a link between delinquency-prone youngsters and motion 
pictures. Although members of the broadcast industry and 
specialists in human deviant behavior criticized these 
conclusions, it elevated the issue to one of public importance.
    As television grew in the 1950s, it became the primary 
focus of media violence researchers. Between the late 1950s and 
early 1960s, several studies suggested a strong link between 
television violence and youth aggression. In 1969, the Surgeon 
General was petitioned by Senator John Pastore, the Chairman of 
the Senate Committee on Commerce, to conduct a study on 
television and social behavior. The study, published in 1972, 
found that: (1) television content is heavily saturated with 
violence; (2) children and adults are watching more television; 
and (3) there is some evidence that, on balance, viewing 
violent television entertainment increases the likelihood of 
aggressive behavior.
    The Surgeon General's report heightened concern over the 
issue and led to more studies, including a study released in 
1975 by the Journal of American Medical Association (JAMA). The 
study suggested that television violence was having a deforming 
effect on children, resulting in abnormal child development, 
and increasing levels of physical aggressiveness. In response, 
the America Medical Association (AMA) passed a resolution 
declaring that television violence threatened the welfare of 
young Americans.
    Since the release of the Surgeon General's report and the 
JAMA study, a number of major medical and public health 
organizations have studied and affirmed the link between 
violent programming and violent behavior in children. In 1982, 
the National Institute of Mental Health (NIMH) produced a 
report entitled ``Television and Behavior: Ten Years of 
Scientific Progress and Implications for the Eighties,'' 
concluding that TV violence affects all children, not just 
those predisposed to aggression. Specifically, the report 
reaffirmed the conclusions of earlier studies:

          After 10 more years of research, the consensus among 
        most of the research community is that violence on 
        television does lead to aggressive behavior by children 
        and teenagers who watch the programs. This conclusion 
        is based on laboratory experiments and on field 
        studies. Not all children become aggressive, of course, 
        but the correlations between violence and aggression 
        are positive. In magnitude, television violence is as 
        strongly correlated with aggressive behavior as any 
        other behavioral variable that has been measured. The 
        research question has moved from asking whether or not 
        there is an effect to seeking explanations for the 
        effect.\7\
-----------------------------------------------------------------------
    \7\ National Institute of Mental Health, Television and Behavior: 
Ten Years of Scientific Progress and Implications for the Eighties 
(David Pearl et al. eds., 1982) p.6.

    In 1992, Dr. Brandon Centerwall, a Professor of 
Epidemiology at the University of Washington, conducted a study 
on the homicide rates in South Africa, Canada, and the United 
States in relation to the introduction of television. In all 
three countries, Dr. Centerwall found that the homicide rate 
doubled about 10 or 15 years after the introduction of 
television. According to Dr. Centerwall, the lag time in each 
country reflects the fact that television exerts its behavior-
modifying effects primarily on children, whereas violent 
activity is primarily an adult activity. Dr. Centerwall 
concludes that ``long-term childhood exposure to television is 
a causal factor behind approximately one-half of the homicides 
committed in the United States.'' This report found that 
extensive exposure to television violence could lead to chronic 
effects extending into later adolescence and adulthood.
    In June 2000, representatives from 6 of the nation's top 
public health organizations, including the Academy of 
Pediatrics, the APA, and the AMA, issued a joint statement 
noting that:

          Well over 1,000 studies--including reports from the 
        Surgeon General's office, the National Institute of 
        Mental Health, and numerous studies conducted by 
        leading figures within our medical and public health 
        organizations--our own members--point overwhelmingly to 
        a causal connection between media violence and 
        aggressive behavior in some children. The conclusion of 
        the public health community, based on over 30 years of 
        research, is that viewing entertainment violence can 
        lead to increases in aggressive attitudes, values and 
        behavior, particularly in children. Its effects are 
        measurable and long lasting. Moreover, prolonged 
        viewing of media violence can lead to emotional 
        desensitization toward violence in real life.

    This conclusion has been further supported by subsequent 
research. In March 2003, Dr. Rowell Huesmann and Dr. Leonard 
Eron reviewed the long-term relationship between viewing media 
violence in childhood and young-adult aggressive behavior. The 
doctors found that ``both males and females from all social 
strata and all levels of initial aggressiveness are placed at 
increased risk for the development of adult aggressive and 
violent behavior when they viewed a high and steady diet of 
violent television shows in early childhood.'' \8\  This 
longitudinal study was started in the 1960s and followed a 
group of 875 children in upstate New York, examining them at 
ages 8, 19, and 30.\9\
-----------------------------------------------------------------------
    \8\ See L/ Rowell Huesmann et al., Longitudinal Relations Between 
Children's Exposure to TV Violence and Their Aggressive and Violent 
Behavior in Young Adulthood: 1977-1992, Development Psychology, 39 
(2003): 201-221.
    \9\ See L. Rowell Huesmann et al., Stability of Aggression Over 
Time and Generations, Developmental Psychology 20 (1984): 1,120-1,134.
-----------------------------------------------------------------------
    Finally, in March 2003, the Committee heard testimony from 
Dr. Michael Rich, Director of the Center on Media and 
Children's Health at the Children's Hospital of Boston, 
concerning neurobiological research and the impact of media 
violence on children. At that hearing, Dr. Rich testified that 
the correlation between violent media and aggressive behavior:

          . . . is stronger than that of calcium intake and 
        bone mass, lead ingestion and lower IQ, condom non-use 
        and sexually acquired HIV, and environmental tobacco 
        smoke and lung cancer, all associations that clinicians 
        accept as fact, and on which preventive medicine is 
        based without question.

    Given this evidence about the correlation between exposure 
to violent programming and violent behavior, many organizations 
have become increasingly alarmed by the increased prevalence of 
violent programming on broadcast, cable, and satellite 
television. As noted earlier, the APA estimates that a typical 
child will watch 8,000 murders and 100,000 acts of violence 
before finishing elementary school. Similarly, in 1998, a $3.5 
million study, commissioned by the National Cable Television 
Association (NCTA) and conducted by a panel of leading 
educators and social scientists (The National Television 
Violence Report) indicated that from 1994 to 1997 the level of 
television violence was relatively constant, with about 60 
percent of programming containing violent content, averaging 
about 6 violent acts per hour. During prime time viewing hours, 
however, the study found that the number of programs with 
violence increased by 14 percent on the Big Four networks, by 7 
percent on independent broadcast stations, and by 10 percent on 
basic cable channels.
    Moreover, the manner in which violence is portrayed on 
television may be a cause for concern. For example, the NCTA 
study reported that:

          Much of TV violence is still glamorized . . . Most 
        violence on television continues to be sanitized . . . 
        Less than 20 percent of violent programs portray the 
        long-term damage of violence to the victim's family, 
        friends, and community . . . Much of the serious 
        physical aggression on television is still trivialized 
        . . . Very few programs emphasize an anti-violence 
        theme.

    In 2003, the PTC conducted a study on television violence 
that was published in a report entitled, ``TV Bloodbath: 
Violence on Prime Time Broadcast TV'', which surveyed 
programming shown during the 1998, 2000, and 2002 November 
sweeps. The report found that the prevalence of violent 
programming increased in every time slot between 1998 and 2002, 
and that in 2002 depictions of violence were 41 percent more 
frequent during the 8 p.m. hour and 134.4 percent more frequent 
during the 9 p.m. hour than in 1998.

                     B. PRIOR CONGRESSIONAL ACTION

    Congress has expressed concern about the amount of violence 
on television since the 1950s. Studies conducted in the 1950s 
showed that violent crime increased significantly early in that 
decade, and some researchers believed that the spread of 
television was partly to blame. In response, Congress held 
hearings concerning violence in radio and television and its 
impact on children in 1952 and 1954. In 1956, one of the first 
studies of television violence reported that 4 year-olds who 
watched the ``Woody Woodpecker'' cartoon were more likely to 
display aggressive behavior than children who watched the 
``Little Red Hen.'' After the broadcast industry pledged to 
regulate itself and after the FCC testified against regulatory 
action, Congress chose not to act.
    In the early 1960s, as a follow up to the earlier Senate 
hearings, President John F. Kennedy and Attorney General Robert 
Kennedy placed significant pressure on the television networks 
to reduce violent content in their programming. However, the 
pressure yielded few results. The urban riots of the 1960s 
again raised concern about the link between television violence 
and violent behavior. In response to public concern, President 
Lyndon B. Johnson established the National Commission on the 
Causes and Prevention of Violence. The Commission's Mass Media 
Task Force looked at the impact of violence on television and 
concluded that television violence (1) has a negative impact on 
behavior; (2) encourages subsequent violent behavior; and (3) 
``fosters moral and social values about violence in daily life 
which are unacceptable in a civilized society.'' \10\
-----------------------------------------------------------------------
    \10\ See U.S. National Commission on the Causes and Prevention of 
Violence, Final Report of the National Commission on the Causes and 
Prevention of Violence, Washington, D.C., U.S. Government Printing 
Office, December 1969, p. 199.
-----------------------------------------------------------------------
    In 1969, Senator John Pastore petitioned the Surgeon 
General to investigate the effects of TV violence. In 1972, 
Surgeon General Jessie Steinfeld released a study demonstrating 
a correlation between television violence and violent and 
aggressive behavior and called for congressional action.\11\ 
The 5 volume report concluded that there is a causal 
relationship between TV violence and aggressive behavior, but 
primarily on children presupposed to aggressive behavior.
-----------------------------------------------------------------------
    \11\ See U.S. Department of Health, Education, and Welfare, The 
Surgeon General's Scientific Advisory Committee on Television and 
Social Behavior, Television and Growing Up: The Impact of Televised 
Violence. Report to the Surgeon General, Washington, D.C., United 
States Government Printing Office, 1972, p. 279.
-----------------------------------------------------------------------
    Several more hearings were held after the release of the 
Surgeon General's report in the 1970s. In 1975, a report by the 
JAMA suggested that television violence was having a deforming 
effect on children, resulting in abnormal child development, 
and increasing levels of physical aggressiveness. In response, 
the AMA passed a resolution declaring television violence to be 
a threat to the welfare of young Americans. Despite the 
findings, little regulatory or congressional action was taken. 
However, continued concerns prompted Congress to request the 
FCC to study possible solutions.
    On February 20, 1975, the FCC issued its ``Report on the 
Broadcast of Violent and Obscene Material.'' The report 
recommended statutory clarification regarding the Commission's 
authority to prohibit certain broadcasts of obscene and 
indecent materials. However, with regard to the issue of 
television violence, the FCC did not recommend any 
congressional action because the industry had recently adopted 
a voluntary family viewing policy as part of a industry code of 
conduct. The policy provided that ``entertainment programming 
inappropriate for viewing by a general family audience should 
not be broadcast during the first hour of network entertainment 
programming in prime time and in the immediately preceding 
hour.'' In 1982, the Department of Justice challenged the code 
on antitrust grounds wholly unrelated to the family viewing 
policy. The National Association of Broadcasters (NAB) 
ultimately eliminated code and with it went the family viewing 
policy.
    During the 101st Congress, Senator Paul Simon (D--IL) 
introduced the Television Program Improvement Act. That 
legislation granted an antitrust exemption to permit television 
industry representatives to meet, consider, and jointly agree 
upon implementing voluntary standards that would lead to a 
reduction in television violence. Subsequent to the bill's 
enactment, industry discussions led to the release in December 
1992 of joint standards regarding the broadcasting of excessive 
television violence. In June 1993, the networks adopted a 
policy to warn viewers about programs that might contain 
excessive violence. That policy required the following 
statement to be transmitted before and during the broadcasting 
of violent programs: ``Due to some violent content, parental 
discretion is advised.''
    Despite these efforts by the industry, many in Congress 
believed the voluntary standards did not adequately address the 
concerns over television violence. In October 1993, the 
Committee held a hearing on television violence to consider a 
variety of legislative proposals. Attorney General Janet Reno 
testified that all the legislation pending before the Committee 
at that time, including S. 1383 (103rd Congress), the 
Children's Protection From Violent Programming Act of 1993 
(Hollings-Inouye), would be constitutional. The major broadcast 
networks and other industry representatives argued that the 
amount of violent programming had declined and requested more 
time to implement proposed warning labels before Congress 
considered legislation. No further action was taken in the 
103rd Congress.
    On July 11, 1995, the Committee held a hearing on 
television violence to consider pending measures, including S. 
470 (104th Congress), introduced by Senator Hollings and known 
as the ``safe harbor legislation''. S. 470 was identical to S. 
1383. The Committee subsequently reported S. 470 without 
amendment on August 10, 1995 by a recorded vote of 16 to 1, 
with two Senators not voting. Similar legislation was reported 
out of Committee in the 105th Congress by a vote of 19 to 1 and 
in the 106th Congress by a vote of 17 to 1, with one Senator 
voting present.
    As discussed earlier, part of the 1996 Act, Congress 
adopted legislation which required television manufacturers to 
include a device, dubbed the V-Chip for violence, capable of 
blocking programming with certain ratings. In conjunction with 
the V-Chip, the 1996 Act encouraged the video programming 
industry to ``establish voluntary rules for rating video 
programming that contains sexual, violent, or other indecent 
material about which parents should be informed before it is 
displayed to children,'' and to broadcast voluntarily signals 
containing these ratings.
    On February 29, 1996, all segments of the television 
industry created the ``TV Ratings Implementation Group'' headed 
by Motion Picture Association of America (MPAA) President Jack 
Valenti. The group submitted its voluntary age-based ratings 
proposal to the FCC on January 17, 1997. The Implementation 
Group included the following industry groups: members from the 
broadcast networks; affiliated, independent, and public 
television stations; cable programmers; producers and 
distributors of cable programming; entertainment companies; 
movie studios; and members of the guilds representing writers, 
directors, producers, and actors.
    These age-based ratings came under intense and immediate 
criticism because they failed to identify specific content that 
was violent, sexual in nature, or contained mature dialogue. 
Thus, the ratings denied parents the ability to block 
individual programs based on objections to the specific content 
of the programs. In response to these criticisms, most of the 
television industry agreed to a ``revised ratings system'' 
which added designators indicating whether a program received a 
particular rating because of sex (S), violence (V), language 
(L), or suggestive dialogue (D). A designator for fantasy 
violence (FV) was added for children's programming in the TV-Y7 
category. This revised ratings system was approved by an FCC 
order on March 12, 1998. In that same order, the FCC required 
manufacturers to include V-Chip technology to block 
objectionable programming in at least half of televisions 13 
inches or larger by July 1, 1999, and in the remaining half by 
January 1, 2000.
    In 1998, the Kaiser Family Foundation released a report 
(``An Assessment of the Television Industry's Use of V-Chip 
Ratings'') identifying two major implementation problems with 
the ratings system: (1) program producers or the networks were 
making the decisions on what ratings to use, and (2) NBC and 
Black Entertainment Television (BET) were not providing V-Chip 
compatible content ratings. Specifically, the report found that 
79 percent of shows containing violence did not receive a ``V'' 
content descriptor. According to the Kaiser study, ``the bottom 
line for parents who want to use the V-Chip ratings to guide 
their children's viewing is clear: Parents cannot rely on the 
content descriptors, as currently employed, to block all shows 
containing adult language, violence or sexual content.'' In 
addition, with respect to children's programming, the failure 
to use the ``V'' descriptor and the rare use of the ``FV'' 
descriptor led the report to conclude that ``there is no 
effective way for parents to block out all children's shows 
containing violence.''
    In addition to concerns about the application of the 
ratings system, national surveys conducted by the Kaiser Family 
Foundation after the ratings system was implemented show that 
an overwhelming majority of parents do not know the meaning of 
the content ratings. For example, a survey conducted by the 
Kaiser Family Foundation in 1999 found that only 3 percent of 
parents knew that the rating ``FV'' stood for ``fantasy 
violence'' and 2 percent knew that ``D'' stood for ``suggestive 
dialog.'' \12\  An update released in 2001 showed that 14 
percent of parents knew the meaning of ``FV'' and 5 percent 
knew the meaning of ``D.'' \13\ 
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    \12\ Kaiser Family Foundation, How Parents feel (and what they 
know) about tv, the v-chip, and the tv ratings system, (1999).
    \13\ Kaiser Family Foundation, Parents and the V-Chip 2001: A 
Kaiser Family Foundations Survey, (2001).
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    Finally, in March 2004, the Ad Council released the result 
of its nationwide survey of parents with children aged 2 to 17, 
which found that while most parents are concerned about age-
appropriate television content, less than 10 percent of all 
parents are using the V-Chip. Furthermore, the survey found 
that approximately 80 percent of parents that own a television 
set with a V-Chip are unaware that their television has the 
technology.

                       C. SAFE HARBOR REGULATION

    Some have questioned whether limiting the distribution of 
violent programming to certain hours of the day would be 
consistent with the First Amendment of the Constitution. 
Attorney General Janet Reno responded to some of these 
questions when she testified in October 1993 that the safe 
harbor approach in S. 1383 and the other bills before the 
Committee at that time were constitutional.\14\
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    \14\ Testimony of Attorney General Janet Reno, Hearing on S. 1383, 
the Children's Protection from Violent Programming Act of 1993, et al., 
before the Senate Committee on Commerce, Science, and Transportation, 
October 20, 1993, p. 30, 42.
-----------------------------------------------------------------------
    While no court has ruled specifically on the 
constitutionality of the approach taken by title II of S. 2056, 
there appear to be many lines of decisions that would support 
the constitutionality of the safe harbor approach to television 
violence. This legislation could fall within the ambit of the 
clear and present danger exception, the limitations on 
commercial speech and speech harmful to children, the strict 
scrutiny test, and a regulation of time, place, and manner. The 
following discussion focuses on the recent opinions concerning 
broadcast indecency and the strict scrutiny test as examples of 
the lines of analysis that appear to support the 
constitutionality of the safe harbor approach. This discussion 
is not exhaustive, and there may well be arguments to justify 
the legislation which do not appear below.

1. SAFE HARBOR UNDER AN ACT IV CASE ANALYSIS

    The Court of Appeals decision in ACT IV \15\ to uphold the 
safe harbor for broadcast indecency provides, perhaps, the best 
indication that the courts would uphold the safe harbor 
approach for television violence.
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    \15\ 58 F. 3rd 654 (D.C. Cir. 1995)
-----------------------------------------------------------------------
    In 1992, Congress enacted legislation sponsored by Senator 
Robert Byrd to prohibit the broadcast of indecent programming 
during certain hours of the day. The Byrd amendment allowed 
indecent broadcasts between the hours of midnight and 6 a.m.; 
except for public broadcast stations that would go off the air 
at midnight or before were permitted to air indecent broadcasts 
as early as 10 p.m.\16\
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    \16\ Congress had already prohibited obscene and indecent 
broadcasts many years earlier. Section 1464 of title 18, United States 
Code, prohibits the broadcast of any obscene, indecent, or profane 
language by means of radio communication. This language was enacted 
first in the Radio Act of 1927, again as part of section 326 of the 
Communications Act of 1934, and was moved into title 18 in 1948.
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    On June 30, 1995, the United States Court of Appeals for 
the District of Columbia, sitting en banc, upheld the 
constitutionality of the Byrd amendment in ACT IV. The court 
found, in a seven to four opinion, that the safe harbor 
approach, also called ``channeling,'' satisfied the two-part 
``strict scrutiny'' test.\17\
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    \17\  While the court upheld the safe harbor approach implemented 
by the Byrd amendment, it found that the different treatment of certain 
public broadcast stations was unjustified. The court thus directed the 
FCC to modify its rules to apply a consistent safe harbor of 6 a.m. to 
10 p.m. for all broadcast stations.
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    The court found that the government met the first prong of 
the test by establishing that the government had a ``compelling 
governmental interest'' in protecting children from the harm 
caused by indecency. The court found two compelling 
governmental interests, and left open the possibility of a 
third.\18\ First, the court found that ``the Government has a 
compelling interest in supporting parental supervision of what 
children see and hear on the public airwaves.'' \19\ The court 
cited Ginsberg v. New York, 390 U.S. 629, 638, for the 
proposition that government has a ``fundamental interest in 
helping parents exercise their `primary responsibility for 
[their] children's well-being' with `laws designed to aid [in 
the] discharge of that responsibility.'' \20\ Second, the court 
found that ``the Government's own interest in the well-being of 
minors provides an independent justification for the regulation 
of broadcast indecency.'' It quoted the Supreme Court again in 
New York v. Ferber, 458 U.S. 747, 756-57 (1982) for the 
proposition that ``. . . a State's interest in safeguarding the 
physical and psychological well-being of a minor is compelling. 
A democratic society rests, for its continuance, upon the 
healthy, well-rounded growth of young people into full maturity 
as citizens. Accordingly, we have sustained legislation aimed 
at protecting the physical and emotional well-being of youth 
even when the laws have operated in the sensitive area of 
constitutionally protected rights.'' \21\
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    \18\ The court found it unnecessary to address the FCC's contention 
that there is also a compelling governmental interest in protecting the 
home against intrusion by offensive broadcasts. ACT IV, 660-661.
    \19\ Ibid.
    \20\ Ibid.
    \21\ Ibid.
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    The court found that the legislation met the second prong 
of the test because it uses the ``least restrictive means'' to 
accomplish that governmental interest. Here, the court noted 
that, in choosing the hours during which indecency would be 
banned, the government must balance the interests of protecting 
children with the interests of adults. ``The question, then, is 
what period will serve the compelling governmental interests 
without unduly infringing on the adult population's right to 
see and hear indecent material.'' \22\
-----------------------------------------------------------------------
    \22\ Ibid., 665.
-----------------------------------------------------------------------
    After reviewing the evidence compiled by the FCC, the court 
upheld the determination that a ban on indecent programming 
during the hours of 6:00 a.m. to 10:00 p.m. satisfied the 
balance and was the least restrictive means. The court noted 
that, to the extent that such a ban affected the rights of 
adults to hear such programming, ``adults have alternative 
means of satisfying their interest in indecent material at 
other hours in ways that pose no risk to minors [such as 
renting videotapes, computer services, audio tapes, etc.].'' 
\23\ The court stated further that, ``[a]lthough the 
restrictions burden the rights of many adults, it seems 
entirely appropriate that the marginal convenience of some 
adults be made to yield to the imperative needs of the young.'' 
\24\
-----------------------------------------------------------------------
    \23\ Ibid., 666.
    \24\ Ibid., 667.
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    The reasoning of the court in ACT IV appears to apply 
equally to title II of S. 2056. As with indecency, the 
government has a compelling interest in protecting the moral 
and psychological well-being of children against the harm of 
viewing television violence. Also as with indecency, 
restricting television violence to certain hours of the day 
balances the rights of adults to watch violent programming with 
the interests of protecting children. Adults have other ways of 
obtaining access to violent programming just as they have other 
ways of obtaining indecent materials. Thus, the decision 
upholding the safe harbor for indecency appears to provide 
strong support for finding a safe harbor for violence to be 
constitutional.

2. THE STRICT SCRUTINY TEST

    The strict scrutiny test, which was used in the ACT IV 
case, is the most stringent test used to analyze the 
constitutionality of a First Amendment challenge. The following 
discussion assesses the violence safe harbor approach under 
strict scrutiny, not because it is certain that this test will 
apply, but because, if the violence safe harbor approach passes 
the strict scrutiny test, it certainly would pass any lesser 
standard of review. Regulation will pass the strict scrutiny 
test if the regulation is narrowly tailored to meet a 
compelling governmental interest.
    Congress has developed a long and detailed record to 
justify the violence safe harbor approach. Congress has held 
hearings to explore various approaches to television violence 
in every decade since the 1950s. The Senate Committee on 
Commerce, Science, and Transportation alone has held 25 
hearings over the past 3 decades on this topic, including at 
least 5 hearings specifically on the safe harbor approach. The 
Committee has laid extensive groundwork for considering the 
least restrictive means of protecting children from violence on 
television. By contrast, the Byrd amendment, the legislation at 
issue in the ACT IV case, was adopted on the Senate floor 
without any Committee hearings.
a. Compelling Governmental Interest
    The government has several compelling interests in 
protecting children from the harmful effects of viewing 
violence which are discussed below: an interest in protecting 
children from harm, an interest in protecting society in 
general, an interest in helping parents raise their children, 
and an interest in the privacy of the home. Each of these are 
discussed below.
          Harm to children.--Government has a compelling 
        interest in protecting children from the harm caused by 
        television violence. As several witnesses have 
        testified before the Committee and numerous studies 
        have concluded, children's viewing of violence on 
        television encourages violent and anti-social behavior, 
        either as children or later as adults. These studies 
        have demonstrated a causal connection between viewing 
        violence and violent behavior.\25\ These studies have 
        included field studies of the effect of television on 
        persons in real life and laboratory studies. While the 
        study in 1972 by the Surgeon General concluded that 
        there was a causal relationship between viewing 
        violence and behavior primarily among those children 
        predisposed to violence, more recent research by NIMH 
        and others demonstrates that violent television 
        programming affects almost all children. Over 35 years 
        of laboratory and real-life studies provide evidence 
        that televised violence is a cause of aggression among 
        children, both contemporaneously, and over time. 
        Television violence affects youngsters of all ages, 
        both genders, at all socio-economic levels, and at all 
        levels of intelligence. The effect is not limited to 
        children who are already disposed to being aggressive, 
        and it is not restricted to the United States.\26\ 
        While it is perhaps axiomatic that children who become 
        violent because of television suffer harm, it is worth 
        noting that such children suffer harm in many ways. For 
        example, children exposed to excessive violence can 
        become anti-social, distant from others, and 
        unproductive members of society, especially if their 
        actions arouse fear in other people. They can suffer 
        from imprisonment or other forms of criminal punishment 
        if their violence leads to illegal behavior. Violent 
        behavior may not be the only harm caused by viewing 
        violent television. According to the APA, viewing 
        violence can cause fearfulness, desensitization, or an 
        increased appetite for more violence.
-----------------------------------------------------------------------
    \25\ Among these are studies conducted by the American Medical 
Association, the American Psychological Association, the National 
Institute of Mental Health, the Center for Disease Control, and 
numerous studies by individual researchers.
    \26\ Written Testimony of Dr. Leonard Eron, Professor of Psychology 
and Senior Research Scientist, Institute for Social Research, 
University of Michigan, before the Senate Committee on Commerce, 
Science, and Transportation, Communications Subcommittee, May 18, 1999.
-----------------------------------------------------------------------
          Harm of Society.--A related compelling governmental 
        interest is the need to protect society as a whole from 
        the harmful results of television-induced violent 
        behavior. A child who views excessive amounts of 
        television violence is not the only person who suffers 
        harm. In his testimony in 1999, Dr. Eron testified that 
        violent programming can adversely affect society 
        because children who watch excessive amounts of 
        television when they are young are more ``prone to be 
        convicted for more serious crimes by age 30; more 
        aggressive while under the influence of alcohol; and, 
        harsher in the punishment they administered to their 
        own children.'' \27\
-----------------------------------------------------------------------
    \27\ Written Testimony of Dr. Eron before the Senate Committee on 
Commerce, Science, and Transportation Communications Subcommittee, July 
12, 1995, p. 2. Dr. Eron further warns that ``. . . like secondary 
smoke effects, . . . don't think that just because you have protected 
your child from the effects of television violence that your child is 
not affected. You and your child might be the victims of violence 
perpetrated by someone who as a youngster, did learn the motivation for 
and the techniques of violence from television.'' Ibid.
-----------------------------------------------------------------------
          Helping parents supervise their children.--In 
        addition to the governmental interests in protecting 
        children and society from harm, the courts have also 
        recognized a compelling governmental interest in 
        helping parents supervise what their children watch on 
        television. In Ginsberg, the Supreme Court upheld a New 
        York statute making it illegal to sell obscene material 
        to children. The Court noted that it was proper for 
        legislation to help parents exercise their ``primary 
        responsibility for [their] children's well-being with 
        laws designed to aid [in the] discharge of that 
        responsibility.'' \28\
-----------------------------------------------------------------------
    \28\ Ginsberg v. New York, 390 U.S. 629, 639 (1968).
-----------------------------------------------------------------------
          Privacy of the home.--The government's interest in 
        protecting the privacy of the home from intrusion by 
        violent programming may provide another compelling 
        governmental interest. The Supreme Court has recognized 
        that ``in the privacy of the home . . . the 
        individual's right to be left alone plainly outweighs 
        the First Amendment rights of an intruder.'' \29\ The 
        right to privacy in one's home was recently used to 
        uphold legislation limiting persons from making 
        automated telephone calls to residences and small 
        businesses.\30\ Just as subscribers to telephones do 
        not give permission to telemarketers to place automated 
        telephone calls, the ownership of a television does not 
        give programmers permission to broadcast material that 
        is an intrusion into the privacy of the home.
-----------------------------------------------------------------------
    \29\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
    \30\ Moser v. FCC, 46 F.3d 970 (9th Cir. 1995).
-----------------------------------------------------------------------
b. The Least Restrictive Means
    Opponents of the legislation argue that the safe harbor 
approach to television violence is not the least restrictive 
means of accomplishing the goals of reducing children's 
exposure to television violence. Some in the broadcast industry 
argue that the industry should be trusted to regulate itself. 
Parents should bear the primary responsibility for protecting 
their children, according to some observers. Others say that 
the warnings and advisories that many programmers now add to 
certain shows are a lesser restrictive means of protecting 
children. In addition, opponents of legislation assert that the 
V-chip and the television ratings system provide a less 
restrictive means of protecting children.
    In United States v. Playboy, 329 U.S. 803 (2000), the 
Supreme Court invalidated a provision in the 1996 Act that 
required cable operators to either scramble sexually explicit 
channels in full, or limit programming on such channels to 
hours when children are not likely to be watching. The Court 
held that the provision was a content based restriction. The 
Court further held that the requirements of the provision were 
not the least restrictive means of achieving the government's 
goal. The Court found that another provision in the 1996 Act, 
that required cable operators to fully block any channel upon 
request by a subscriber provided a less restrictive 
alternative. The Court added that even if this option was not 
widely used by cable subscribers, the government bears the 
burden of proving that the available alternative is not 
effective. Title II of S. 2056 is crafted in part to respond to 
Playboy. The FCC is only directed to implement a safe harbor 
for violence after it determines that the V-chip and ratings 
system are ineffective alternative means of protecting children 
from television violence. Prior to reaching such a 
determination, the FCC is directed to prohibit violent 
programming that is not electronically blockable, i.e., that is 
not encoded specifically with a rating for violent content.
    While the Committee cannot predict the outcome of the FCC's 
analysis of the effectiveness of the V-chip and the ratings 
system, the Committee does note that parental supervision alone 
may not sufficiently protect children from violence on 
television. For example, the problem of children's exposure to 
violence on television is especially acute for residents of 
inner city neighborhoods. According to Gael Davis of the 
National Council of Negro Women, ``Violence is the No. 1 cause 
of death in the African-American community. . . . [I]n south 
central [Los Angeles], . . . [t]he environment is permeated 
with violence. It is unsafe for children to walk to and from 
school. We have 80 percent latch-key children, where there will 
be no parent in the home during the afterschool hours when they 
are viewing the television. The television has truly become our 
electronic babysitter.'' \31\
-----------------------------------------------------------------------
    \31\ Testimony of Gael T. Davis, President, East Side Section, 
National Council of Negro Women, Hearing on S. 1383, the Children's 
Protection from Violent Programming Act of 1993, et al. before the 
Senate Committee on Commerce, Science, and Transportation, October 20, 
1993.
-----------------------------------------------------------------------
    Many children do not have the benefit of parents willing 
and able to monitor the television programming they watch. 
According to William Abbott of the Foundation to Improve 
Television, ``millions of children watch television 
unsupervised, one-fourth of our children have but a single 
parent (the latch-key kids).'' \32\
-----------------------------------------------------------------------
    \32\ Testimony of William Abbott, President, Foundation to Improve 
Television, before the Committee on Commerce, Science, and 
Transportation, Hearing on Television Violence, July 12, 1995.

           *       *       *       *       *       *       *

    Under the ``strict scrutiny'' test, a regulation that 
limits freedom of speech based on the content must use ``the 
least restrictive means to further the articulated interest.'' 
\33\ As the following discussion demonstrates, in the absence 
of an effective V-chip and content based ratings system, the 
safe harbor approach is the only approach that has a 
significant chance of furthering the compelling governmental 
interest in protecting American children from the impact of 
television violence.
-----------------------------------------------------------------------
    \33\ Sable Communications of California., Inc v. FCC, 492 U.S. 115, 
126 (1989).
-----------------------------------------------------------------------
          Industry self-regulation.--The television industry 
        has been directed to improve its programming by 
        Congress for over 40 years. The first congressional 
        hearings on television violence were held in 1952. 
        Hearings were held in the Senate in 1954 and again in 
        the 1960s, 1970s, 1980s, 1990s, and again, three times 
        since 2000. At many of these hearings, representatives 
        of the television industry testified that they were 
        committed to ensuring that their programming was safe 
        and appropriate for children. In 1972, the Surgeon 
        General called for Congressional action, but this call 
        was ignored after the broadcast industry reached an 
        agreement with the FCC to restrict violent programs and 
        programs unsuitable for children during the family 
        hour. There is substantial evidence, however, that 
        despite the promises of the television industry, the 
        amount of violence on television is far greater than 
        the amount of violence in society and continues to 
        increase. According to one study, ``[s]ince 1955, 
        television characters have been murdered at a rate one 
        thousand times higher than real-world victims. Indeed, 
        television violence has far outstripped reality since 
        the 1950s.'' \34\ The incentives of the television 
        industry to air violent programming are best 
        illustrated by a quote from a memo giving directions to 
        the writers of the program ``Man Against Crime'' on CBS 
        in 1953: ``It has been found that we retain audience 
        interest best when our stories are concerned with 
        murder. Therefore, although other crimes may be 
        introduced, somebody must be murdered, preferably 
        early, with the threat of more violence to come.'' \35\
-----------------------------------------------------------------------
    \34\ S. Robert Lichter, Linda S. Lichter, and Stanley Rothman, 
Prime Time: How TV portrays American Culture, (Regnery Publishing, 
Inc., Washington, D.C., 1994), p. 275.
    \35\ Quoted in Eric Barnouw, The Image Empire, p. 23.
-----------------------------------------------------------------------
          In December 1992, the 4 broadcast networks released a 
        common code of standards that many criticized for being 
        weaker than the networks' own code of practices. In any 
        case, the code appears to have had little effect on the 
        amount of violence on television.
          Recent efforts by the broadcast and cable industries 
        to educate parents about the V-chip and channel 
        blocking can be viewed as another effort to avoid 
        regulation without affecting the amount of violent 
        programming to which children are exposed.
          Warning labels.--Some observers argue that a 
        requirement to put warnings or parental advisories 
        before certain violent programs would be a less 
        restrictive means of satisfying the Government's 
        interest in protecting children. The Committee has 
        received no evidence, however, that such warnings 
        accomplish the purpose of protecting children. Despite 
        the industry's efforts to air such advisories on their 
        own initiative, the National Parent-Teacher's 
        Association and the Foundation to Improve Television 
        support a safe harbor approach. Indeed, there is some 
        reason to believe that advisories may increase the 
        amount of violence on television, as some observers 
        believe that programmers may want a warning label to be 
        placed on a program in order to attract viewers.\36\
-----------------------------------------------------------------------
    \36\ For example, Ms. Lindsay Wagner, a television actress, 
testified in 1993 that film makers sometimes lobby to get an R rating. 
``We now have a couple of generations that have been reared on violence 
for fun and many flock to the films with warnings.'' Testimony of Ms. 
Lindsay Wagner, Hearing on S. 1383, the Children's Protection from 
Violent Programming Act of 1993, before the Senate Committee on 
Commerce, Science, and Transportation.
-----------------------------------------------------------------------
          Therefore, without parental supervision, such warning 
        labels may have the opposite effect of increasing the 
        number of children who watch violent programming. In 
        addition, warnings that appear once at the very 
        beginning of a program may not be seen by a viewer who 
        does not see the beginning of a program. Furthermore, 
        it is difficult to believe that such warnings would be 
        effective in the age of channel surfing.
          Parental responsibility and control technologies.--
        Some observers believe that parents should bear the 
        primary responsibility for protecting their children 
        from violent programming, and that a variety of 
        technologies are now available to assist parents in 
        controlling the programs that their children watch. For 
        several reasons, these approaches do not appear to be 
        effective.
          Even when parents are available and concerned about 
        the television programs that their children watch, they 
        may not be able to monitor their children's television 
        viewing habits at all times. According to one survey, 
        66 percent of homes have three or more television sets, 
        and 54 percent of children have a TV set in their own 
        bedrooms. Children often watch television unsupervised. 
        In fact, 55 percent of children usually watch 
        television alone or with friends, but not with their 
        families.
    The implementation of the safe harbor approach is 
contingent upon the FCC finding that the content based ratings 
system, when used in conjunction with the V-chip, provides an 
ineffective means of protecting children from television 
violence. If the FCC makes such a determination, it is unlikely 
that other technology-based solutions will more appropriately 
address the issue of children and television violence. In 
addition, technology-based solutions may require parents to 
spend money to purchase the new technologies. Development of 
such technologies are also uncertain. There are also questions 
about the ability of parents to program the technologies 
effectively. In many households, the children often are more 
comfortable with the technologies than the parents.

3. DEFINITION OF VIOLENT VIDEO PROGRAMMING
    Title II of S. 2056 adopts the same approach toward violent 
video programming as Congress has previously adopted for 
indecency. Section 1464 of title 18 prohibits the broadcast of 
indecency but does not contain a definition of the term. In 
1975, the FCC adopted a definition of indecency that the courts 
have upheld. While it may be difficult to craft a definition of 
violent video programming, that is not overbroad, that is not 
vague, and that is consistent with the research of harm caused 
to children, these are exactly the tasks that the FCC was 
created to perform. The FCC can hold its own hearings, seek 
comment from the industry and the public, and review the 
research in detail in order develop a definition that satisfies 
constitutional scrutiny.
    Some observers cite the case of Video Software Dealers 
Association v. Webster to support the position that legislation 
to restrict violent video material is unconstitutional.\37\ 
That case, however, concerned a statute that neither contained 
a definition of violent video material nor delegated the 
definition to an expert regulatory agency. Title II of S. 2056, 
by contrast, does not take effect until the FCC issues a 
definition of violent video programming. In Davis-Kidd Books v. 
McWherter, the court overturned a statute that contained a 
definition that was overly vague.\38\ While this case 
demonstrates the difficulty of defining violent video 
programming, it does not stand for the proposition that such 
term is incapable of being defined.
-----------------------------------------------------------------------
    \37\ 968 F.2d 684 (8th Cir. 1992).
    \38\ 866 S.W.2d 250 (1993).
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4. APPLICABILITY TO MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTION 
                    SERVICES
    Some question the constitutionality of restricting violence 
on multichannel video programming distribution (MVPD) services, 
including cable and direct broadcasting satellite (DBS), noting 
that Red Lion,\39\ Pacifica, and the ACT cases pertain only to 
broadcasting, not to cable or any other form of media. However, 
the strict scrutiny test applies to any content regulation, not 
just those imposed on broadcast stations. Court cases indicate 
that a restriction on violent video programming could, 
potentially, be imposed on any media if it satisfies the strict 
scrutiny test.\40\ The court's rationale for subjecting 
broadcasting to a more restrictive treatment includes, the 
scarcity of broadcast frequencies, the pervasive presence of 
broadcast, and accessibility of broadcast to children. In 
recognizing the special status of broadcasting, the Supreme 
Court, in the National Broadcasting Co. and Red Lion cases, 
concluded that due to spectrum scarcity, broadcast frequencies 
are not available to all who wish to use them. The Supreme 
Court in ACT IV, addressed the pervasive presence of broadcast 
and its accessibility to children. The Court stated, ``the 
broadcast media have established a uniquely pervasive presence 
in the lives of all Americans. Patently offensive, indecent 
material presented over the airwaves confronts the citizen, not 
only in public, but also in the privacy of the home, . . . 
Second, broadcasting is uniquely accessible to children . . . 
The ease with which children may obtain access to broadcast 
material, . . . amply justifies special treatment of indecent 
broadcasting.\41\ The ACT IV court further noted that 
``broadcast audiences have no choice but to `subscribe' to the 
entire output of traditional broadcasters.'' \42\
-----------------------------------------------------------------------
    \39\ Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969).
    \40\ The court in ACT IV states, ``[W]e apply strict scrutiny to 
regulations of this kind [concerning indecency] regardless of the 
medium affected by them. . . .'' ACT IV, at 660.
    \41\ Ibid., 659-660.
    \42\ Ibid., 660.
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    Just as with broadcast television, MVPD services have grown 
to have a uniquely pervasive presence in the lives of all 
Americans and are uniquely accessible to children. Over 85 
percent of households now receive some form of MVPD service, 
with 90 percent of such households choosing expanded basic 
offerings. From the perspective of the viewer, and especially 
children, there is little if any distinction between broadcast 
programs and expanded basic programs that are carried on a MVPD 
system.
    Two recent Supreme Court cases indicate that it is 
permissible to regulate pay-TV platforms. The Supreme Court, in 
Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC,\43\ addressed the constitutionality of section 10 of the 
Cable Television Consumer Protection and Competition Act of 
1992. Although the Court struck certain provisions of section 
10, it held that section 10(a), which permits cable operators 
to decide whether or not to broadcast indecent programs on 
leased access channels, is consistent with the First Amendment.
-----------------------------------------------------------------------
    \43\ Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC, 518 U.S. 727 (1996).
-----------------------------------------------------------------------
    In Playboy, the Supreme Court addressed the 
constitutionality of section 505 of the 1996 Act. While the 
court struck down the provisions in question, it did so on the 
grounds that it was not the least restrictive alternative, not 
because Congress cannot regulate content on cable.
    In fact, the District Court opinion in Playboy stated that, 
``. . . cable television is a means of communication which is 
pervasive and . . . [t]he Supreme Court has recognized that 
cable television is as accessible to children as over-the-air 
broadcasting, if not more so.'' \44\ Moreover, the Supreme 
Court in its consideration of freedom of speech under the First 
Amendment has recognized the need to protect children from 
sexually explicit material, particularly in the context of a 
pervasive medium.\45\
-----------------------------------------------------------------------
    \44\ Playboy Entertainment Group v. United States, 945 F. Supp. 722 
(1996).
    \45\ Pacifica, 438 U.S. at 750-51.
-----------------------------------------------------------------------
    Title II of S. 2056 is not intended to apply to premium or 
pay-per-view channels in recognition of the fact that parents 
have the choice to subscribe to these channels on an individual 
basis. This distinction between premium channels and pay-per-
view programs, on the one hand, and basic or expanded basic 
packages of cable or DBS programs, on the other, demonstrates 
the Committee's attempt to balance the rights of children and 
the legitimate rights of parents to watch the programs that 
they want to watch. In this way, the legislation avoids 
unnecessarily interfering with parents' First Amendment rights 
in order to meet the least restrictive means test.

                          Legislative History

    Senators Brownback (for himself, Mr. Allen, and Mr. L. 
Graham) introduced S. 2056 on February 9, 2004. The Committee 
held a hearing on indecent and violent programming and its 
effect on children on February 11, 2004 where all five FCC 
Commissioners testified.
    On March 9, 2004, the Committee held an executive session 
at which S. 2056 was considered. The bill was approved 
unanimously by voice vote and was ordered reported with 
amendments. The Committee first approved a perfecting amendment 
by Senators McCain and Brownback that would impose a per-
utterance penalty; require the FCC to consider a number of 
factors when assessing a fine; create a cap on the total amount 
a broadcast licensee may be fined during a 24-hour period; 
establish deadlines for the FCC to act on indecency complaints; 
and compel the FCC to report to Congress annually about its 
indecency enforcement activities. The perfecting amendment was 
modified by a second-degree amendment by Senator Stevens that 
would create an escalating fine structure; double the cap on 
fines if the FCC finds certain aggravating factors present; and 
require the FCC to commence a license revocation proceeding 
against any licensee that has paid, or been ordered by a court 
to pay, fines arising from three indecency violations during 
its license term. Additionally, the Committee approved an 
amendment offered by Senator Stevens that would eliminate any 
restrictions on broadcasters or associations representing 
broadcasters from instituting a voluntary industry code of 
conduct governing a family viewing policy. The Committee also 
approved an amendment by Senators Stevens and Allen that would 
``streamline'' the process for imposing financial penalties 
against non-licensees who violate 18 U.S.C. 1464, and increase 
the cap on fines against non-licensee violators. An amendment 
by Senators Dorgan, Lott, Snowe, and Cantwell was approved that 
would require the relationship between media consolidation and 
indecent broadcasts to be studied by the General Accounting 
Office (GAO) and would suspend the FCC's June 2, 2003, media 
ownership rules while the GAO conducts its study.
    The Committee also approved an amendment by Senators 
Hollings and Stevens that would require the FCC to study the 
effectiveness of the V-Chip and prohibit the distribution of 
violent video programming during the hours when children are 
reasonably likely to comprise a substantial portion of the 
audience, if the V-chip is determined to be ineffective.
    The amendment is substantially similar to legislation 
previously reported favorably by the Committee. In October, 
1993, the Committee held a hearing on television violence to 
consider a variety of legislative proposals. Attorney General 
Janet Reno testified that the legislation pending before the 
Committee, including S. 1383, the Hollings-Inouye legislation 
establishing a safe harbor for violent programming, would be 
constitutional.
    On July 11, 1995, the Committee held its second hearing on 
television violence to consider pending measures, including S. 
470, the Hollings safe harbor legislation. S. 470 (104th 
Congress) is identical to S. 1383 (103rd Congress). The 
Committee subsequently reported S. 470, as introduced, on 
August 10, 1995, by a recorded vote of 16 to 1, with two 
Senators not voting. No further action was taken during the 
104th Congress.
    On February 26, 1997, Senator Hollings with Senators Inouye 
and Dorgan as co-sponsors, introduced S. 363. S. 363 was 
similar to S. 470 but allowed the Commission to implement a 
safe harbor if it did not implement a content-based ratings 
system. On February 27, 1997, the Committee held another 
hearing on television violence in which S. 363 was addressed. 
Groups such as the APA expressed their disapproval of the 
current age based rating system proposed by the industry and 
noted their preference for a content-based ratings system. 
Kevin Saunders, Professor of Law at the University of Oklahoma, 
testified that violent programming could arguably be considered 
obscene or indecent and the safe harbor approach is 
constitutional.\46\ On May 1, 1997, the Committee reported S. 
363 with one amendment to add findings by a recorded vote of 19 
to 1.
-----------------------------------------------------------------------
    \46\ Testimony of Kevin Saunders, J.D., Ph.D. before the Senate 
Committee on Commerce, Science, and Transportation, February 27, 1997. 
p. 17 and 7.
-----------------------------------------------------------------------
    On April 26, 1999, Senator Hollings introduced S. 876, safe 
harbor legislation that was substantially similar to S. 470 and 
S. 1383. The bill was co-sponsored by Senators Byrd, Durbin, 
and Inouye. On May 13, 1999, the Committee held its third 
hearing on television violence and safe harbor legislation. 
Senator Hollings' bill, S. 876 was discussed at length, and 
testimony was offered as to the constitutionality of the 
measure as well as the adverse harm to children affected by 
exposure to violence on television. On September 20, 2000, the 
Committee reported S. 876, as amended, by a recorded vote of 17 
to 1, with one Senator voting present.
    On April 10, 2003, the Committee held its fourth hearing on 
the impact of violent material on children. Specifically, the 
witnesses testified on neurobiological research in the field of 
brain mapping and conclusions reached on the impact of media 
violence on children. On February 1, 2004, the Committee held 
its fifth hearing on television violence. Senator Hollings safe 
harbor legislation, S. 161, which was incorporated with minor 
changes as an amendment into S. 2056, was discussed by the five 
FCC Commissioners.

                      REVIEW AND FILING OF REPORT

    Before any report is filed by the Committee, it is reviewed 
by several staff members to ensure that it complies with 
Committee standards and the Standing Rules of the Senate. The 
Committee uses a routing slip, which is attached to the draft 
report as it makes its way through the review and approval 
process, in order to track the report's progress. The 
Committee's Legislative Counsel usually generates the routing 
slip when the initial draft is formatted for printing.

                      PREPARATION OF INITIAL DRAFT

    The first draft of a committee report is usually prepared 
by the majority staff of the subcommittee that has jurisdiction 
of the measure. That staff should make sure that the report 
contains all necessary sections, that the statements made in 
the draft are accurate, and that the material is presented in a 
concise, clear, and orderly fashion. When the first draft is 
complete, it may be sent to the Committee's Legislative Counsel 
for formatting before being transmitted to the minority staff 
or it may be transmitted directly to the minority staff of that 
subcommittee in order to complete a mutually acceptable first 
draft before it is given to the Committee's Legislative Counsel 
for its initial formatting. The latter procedure may be more 
efficient where there is general agreement between the majority 
and minority staff as to the content or where such extensive 
revisions to the first draft are anticipated that formatting 
the first draft would be a waste of time and Committee 
resources.

                        REVIEW BY MINORITY STAFF

    Once the draft report has been cleared by the majority 
subcommittee staff, it should be sent to the minority staff of 
the same subcommittee for review. As noted in the preceding 
paragraph, this review may occur before or after the draft 
report is given to the Committee's Legislative Counsel for 
formatting. The minority staff should carefully review the 
report and consult with the majority staff on any necessary or 
desired revisions. When the majority and minority subcommittee 
staff responsible for the initial draft have agreed on a 
mutually acceptable version of the report, they should indicate 
their agreement by initialing and dating the routing slip and 
giving the draft and any revisions to the Committee's 
Legislative Counsel.

                     SUBSEQUENT REVIEW AND APPROVAL

    The Committee's Legislative Counsel will revise the draft 
report as necessary and forward the revised draft, with the 
routing slip, to the general counsel for the minority, who will 
indicate any edits requested on the hard copy of the report, 
initial and date the routing slip, and return it to the 
Committee's Legislative Counsel. The Committee's Legislative 
Counsel will execute the edits and transmit the edited report, 
together with a copy of the requested edits, to the general 
counsel for the majority. After review, and possible further 
editing by the general counsel for the majority, the copy and 
routing slip are returned to the Legislative Counsel for 
further revision as necessary before being submitted to the 
minority staff director and the majority staff director, 
respectively, for final review and approval. During the review 
process, edits are often negotiated between the majority and 
the minority staff, with the goal of making sure the final 
report reflects as nearly as possible the views of the 
Committee as a whole.

                          FILING OF THE REPORT

    The majority staff is responsible for filing the bill and 
report after the report has been approved by the staff 
directors. The majority staff director will notify the 
Committee's Legislative Counsel when a report is ready to be 
filed. The Committee's Legislative Counsel will then prepare a 
clean copy of the bill and the report for filing, transmit the 
data files for the bill and the report to the Government 
Printing Office (GPO), and notify the Bill Clerk's office by e-
mail when they are filed (attaching copies of the PDFs and 
related data files to the e-mail). The chairman's signature is 
required on the front page of the bill and the report. The bill 
and report are then delivered to the majority party cloakroom 
for filing. No accompanying statement or other action by the 
chairman is required.

                                 TIMING

    As a general rule, it is desirable for the report to be 
drafted as soon as possible after a bill is ordered reported by 
the Committee. While a good part of the report language may 
already have been written as part of the briefing memoranda for 
the markup, it is always better to put together the description 
of committee consideration of a measure while memories of the 
markup are fresh.
    As noted in the introduction, rule XVII of the Standing 
Rules of the Senate establishes a minimum period of time 
between the date on which a bill is reported and the date on 
which it first can be considered. It is important that the data 
files for a reported bill and the accompanying report are made 
available to GPO when the bill and report are filed. Failure to 
make them available in a timely fashion may result in 
unnecessary delay in the delivery of the printed report to the 
Senate and that may adversely affect the Senate's schedule or 
frustrate the Committee's intentions with respect to moving the 
legislation. Even if GPO has the files as soon as a report is 
filed, it may still take up to a week to obtain printed copies 
of the report, and even longer when other Congressional 
activity significantly increases the GPO's workload, which is 
another reason for getting the reports written and filed as 
expeditiously as possible.

                        EXTRA COPIES OF REPORTS

    The Committee receives 150 copies of a printed report and 
bill for the use of the Public Information Office and Committee 
staff. After internal distribution, approximately 75 copies 
remain for public distribution. The Senate Document Room will 
receive additional copies. Usually this is more than 
sufficient. In rare instances, however, where the demand for 
copies of the report or the bill is expected to exceed the 
supply, the Committee can request the printing of additional 
copies if the request is submitted before the report and bill 
are filed. The request must be made by the Committee clerk 
through the Public Information Office.

                            THINGS TO AVOID

    The 3 principal mistakes to avoid when preparing any 
Committee report are the following:

                         UNVERIFIED STATEMENTS

    The staff is responsible for the accuracy of every 
statement in the report. If a statement cannot be verified, it 
should be dropped. This requirement applies equally to any 
material supplied by a government agency or other interested 
party.

                           PERSONAL OPINIONS

    A committee report is supposed to reflect the consensus of 
a majority of the full committee and not the individual views 
of a single Senator or of the staff member preparing the 
report. The staff member must make sure that the report 
accurately reflects the oral and written views adopted by the 
Committee at the markup and does not contain any embellishments 
that go beyond an accurate and good-faith description of these 
views.
    The staff member should also insure that the report 
maintains a professional tone and unbiased perspective 
befitting the Committee. This does not mean that a staff member 
cannot be an advocate for a position officially adopted by the 
Committee, but it does mean that the presentation of any 
arguments for or against that position in the report should be 
accurate and unbiased.

                     EXTRA ARGUMENTS FOR OPPONENTS

    The opponents of any controversial bill may scour the 
report for statements to use in arguments against the bill. As 
noted in the preceding paragraph, arguments for or against the 
Committee's position should be fairly and carefully stated. It 
may be possible in this manner to anticipate and counter an 
argument that an opponent might use against the bill. In doing 
so, however, one must be extremely careful not to leave any 
loopholes or careless statements that may be used against the 
bill. It is often helpful to have another staffer who is 
familiar with the bill closely examine critical sections of the 
draft report to make sure that the other staffer's 
interpretation of the language is consistent with its intended 
effect.

                         A FEW MATTERS OF STYLE

    In order to ensure that committee reports are written in a 
clear, easily read and understood, expository style, it may be 
useful to consult a work such as ``The Elements of Style'' \4\ 
or any other work providing guidance on style, usage, and 
grammar. The Chicago Manual of Style is available online at 
http://webster.senate.gov under the ``News & Research'' tab. 
The Government Printing Office publishes a Style Manual, which 
primarily addresses technical matters of style for government 
publications such as capitalization, compound words, 
punctuation, and abbreviations. There are several special rules 
observed in Committee reports, some of which are derived from 
the GPO Style Manual, including the following:
-----------------------------------------------------------------------
    \4\ The Elements of Style, 4th Ed., William Strunk, Jr., E.B. 
White, Roger Angell, Allyn & Bacon (2000).
-----------------------------------------------------------------------
           The Oxford Comma. The Committee style in 
        reports and legislation is to include a comma after the 
        penultimate item in a series ending with ``and'' or 
        ``or''. Thus, the name of the Committee is the 
        Committee on Commerce, Science, and Transportation.
           Abbreviating frequently used terms. As 
        should be apparent from examples elsewhere in this 
        guide, an abbreviation, in parentheses without 
        quotation marks, should appear immediately after the 
        first usage of a term in a report that will be used 
        multiple times in the report. E.g., . . . the Committee 
        on Commerce, Science, and Transportation (Committee) . 
        . . the Federal Communications Commission (FCC) . . . 
        voice-over-Internet-protocol (VOIP) . . . the 
        Telecommunications Act of 1996 (1996 Act).
           Capitalizing Federal and State. Generally 
        the words ``Federal'' and ``State'' are capitalized.
           Not capitalizing section. The word 
        ``section'' is not capitalized unless it is the first 
        word in a sentence; neither are the words ``chapter'' 
        or ``title'', as in `` . . . would amend chapter 449 of 
        title 49, United States Code, . . .''..
           Use of subjunctive. The subjunctive mood is 
        employed to describe what would happen if a reported 
        bill were to be enacted. Thus, ``Section 2 of the bill 
        would amend the Communications Act of 1934 to increase 
        the penalty for . . .'' rather than ``Section 2 of the 
        bill amends the Communications Act of 1934 . . .''.
           References to existing law. References to 
        provisions of existing law in a committee report should 
        refer to the permanent law rather than the United 
        States Code citation if the law appears in a title of 
        the Code that has not yet been enacted into permanent 
        law (codified). \5\ See the 4th and 5th examples on 
        pages 4 and 5.
-----------------------------------------------------------------------
    \5\ All Federal laws of a general and permanent nature are arranged 
in a compilation known as the United States Code, where they are 
organized topically into 50 different titles. As of the end of the 
108th Congress, 24 of those titles have been revised, codified, and 
enacted without substantive change as permanent law. As for the laws 
that appear in yet ``uncodified'' titles, the Code is merely prima 
facie evidence of the law, i.e., an editorial compilation of 
convenience. The provisions of those titles, which include several 
subjects within the jurisdiction of the Committee, can be cited by 
reference to the Code but -- because the United States Code title in 
which they are contained has not yet been enacted as permanent law -- 
they cannot be amended or repealed by reference to the Code citation. 
Thus, the text of section 254 of the Communications Act of 1934 
(relating to universal service) appears as section 254 of title 47, 
United States Code, but any amendment of that text must be made to the 
underlying permanent law, i.e., section 254 of the Communications Act 
of 1934, rather than title 47, United States Code. On the other hand, 
title 49, United States Code, relating to transportation was 
``codified'' in 1994 and changes in that law are now effected by 
amending the appropriate provision of title 49. References in a report 
to such an amendment should refer to the United States Code citation 
(in no small part because the underlying laws that were ``codified'' 
are repealed as part of the process), i.e., ``Section ---- of the bill 
would amend section 44922 of title 49, United States Code, (title 49) 
to . . ..''.

                               APPENDIX:

                        HOW TO INTRODUCE A BILL

[Note: The process and procedures described here are those that are in 
              effect at the time this guide was prepared.]

  Committee staff members are often called upon to develop 
draft legislation for introduction by the chairman or other 
members of the Committee. This appendix is intended to provide 
basic guidance to new staff members on how to go about getting 
a bill to the floor for introduction.

                             ON YOUR MARK!

  When a subcommittee staff has a Staff Working Draft nearing 
readiness for introduction, it should work with the Staff 
Director's office on the following steps:
           Resolve any questions of committee jurisdiction. 
        If there is a concern that the Parliamentarian may 
        consider the bill to be in the jurisdiction of another 
        Senate Committee (EPW, HSGAC, Energy, etc.) please 
        discuss ahead of time with the General Counsel and 
        Staff Director. It may also be advisable to write a 
        short memo and seek an opinion from the Parliamentarian 
        prior to introduction. It is much easier to resolve the 
        jurisdictional issue before dropping than after. It may 
        be necessary to have portions of the bill redrafted or 
        omitted to ensure referral to CST.
           Draft any necessary memos to the Staff Director 
        for approval to introduce, particular questions of 
        content, and any other matters deemed necessary by the 
        front office. Submit through normal clearance process.
           Receive definitive approval to proceed with 
        introduction from the Staff Director.
           Draft any supporting documents as necessary, such 
        as summaries, section-by-section description, etc.
           Inform the Communications Director of the 
        impending introduction, alert him or her to any 
        corollary issues, and work with him or her to draft 
        press releases, etc.
           Optional: Obtain letters of support. If not upon 
        introduction, you may wish to collect them for use in 
        markup.

                                GET SET!

  Once the bill and all components have been cleared by 
Counsel, Staff Director's office, and all corrections and edits 
made by the Committee's Legislative Counsel, receive final 
version of the bill. The Legislative Counsel can remove the 
``Staff Working Draft'' header and dateline for a cleaner copy, 
although this is not required for introduction. Also, you may 
wish to update the cosponsor information.
  Upon receipt of the final draft from the Legislative Counsel, 
inform the Legislative Counsel and the assistant as to when the 
bill will be dropped so that the file can be forwarded 
electronically to GPO! Failure to do so results in a 2 a.m. 
telephone call to the Legislative Counsel from the GPO night 
crew looking for the data file.
  Consider your timing. Do not let the Senate adjourn on you by 
waiting too long! The Senate must be in session for a bill to 
be introduced!
  Be sure to write the staff contact information (name, number, 
office) on the back of the last page of the bill and any floor 
statement accompanying the bill.
  You need 1 copy of the statement and 2 copies of the bill (if 
you intend for the bill text to be printed in the Congressional 
Record) because 1 copy of the bill will be going to the Bill 
Clerk and another to the Record staff.
  The front page of each item should have the Sponsor's 
original signature (not a copied page) at the top.
  All original cosponsors must be listed on the front page of 
the bill in the order in which they should appear on the GPO 
printed version. If they have not been printed on the final 
draft, write the names in the correct order on each copy. If 
this is not done, it is virtually impossible to correct the 
next day (and entirely impossible to add original cosponsors 
once the introduced bill is printed by GPO). If you drop a bill 
earlier in the day and have a late additional cosponsor, you 
CAN send down a separate UC request for that Senator's 
inclusion as an original cosponsor (if done on the same 
legislative day).
  Last minute changes, if absolutely necessary, may be made by 
hand to the printed document. The general rule is that when 
hand written conflicts with the electronically filed document, 
hand written wins. Do not make any change that has not been 
agreed to by all parties involved.

                                  GO!

  Drop off all copies (2 of the bill, 1 intro statement) at the 
Democratic or Republican Cloakroom depending upon the party 
affiliation of the sponsor. If you have a complicated package 
of documents, ask to speak to the Assistant Secretary for the 
Majority or the Minority, as appropriate, and follow his or her 
instructions.
  In order for the text of a bill to be printed in the 
Congressional Record, a Unanimous Consent request must be 
included as the last sentence of the sponsor's statement upon 
introduction. If you have not done this, it may be possible to 
add a UC request, signed, to the top of the package, but you 
will have to work with the Cloakroom staff directly to make 
sure they will allow it. Always making sure it is in the signed 
statement to begin with is much easier.
For details on the Statement of Introduction, please see the 
next section. Requirements vary when the Senator introduces on 
the floor, however, following these guidelines is the 
precautionary approach for ensuring proper publication in the 
Congressional Record and saving yourself from multiple trips to 
the Cloakroom.

                        INTRODUCTION STATEMENTS

REQUIREMENTS FOR THE INCLUSION OF INTRODUCTION STATEMENTS IN THE 
                    CONGRESSIONAL RECORD:

          Unless the sponsor intends to deliver the 
        introductory statement in person on the floor of the 
        Senate, turn in 2 copies of the bill and any statements 
        related thereto to the appropriate Cloakroom. The 
        Cloakroom will forward these to the Parliamentarian, 
        who determines which committee has jurisdiction over 
        the bill. The Parliamentarian informs the Bill Clerk of 
        the referral and the Bill Clerk writes that information 
        on the copy and assigns the bill number.
          If the sponsor is not going to deliver the 
        introductory statement in person on the floor of the 
        Senate:
                   You need 2 copies of the bill, both with 
                original signatures. You may not copy the top 
                page for the second copy.
                   You need 1 copy of the statement of 
                introduction. It must include a UC request to 
                print the full text of the bill in the record 
                if that is desired.
                   The UC request MUST be the LAST sentence 
                of the introductory statement for clerks to 
                read actually see it.
                   The statement must be signed (original 
                signature of Senator on each copy if there is 
                more than 1).
                   Staff contact information (name and 
                number) must be on the back of the last page of 
                the bill and any statement.
                   E-mail an electronic version of the 
                statement to [email protected].

OFFICES AND CONTACTS
  The Official Reporters of Debates are responsible for the 
stenographic reporting, transcribing, and editing of the Senate 
floor proceedings for publication in the Congressional Record. 
Their offices are on the 4th floor of the Capitol building.They 
will deal with the any introduction statements related to the 
bill. There is an individual who serves as the Coordinator of 
the Record. The Morning Business Editor (224-3079) compiles the 
introductions and statements for the Record. Since only a 
Standing Order under Senate Rules allows bills to be introduced 
at times other than during morning business, all introduced 
measures appear in the morning business section of the Record.
  The Bill Clerk (224-2118 or 224-2120) is responsible for 
preparing for print all measures introduced, received, 
submitted, and reported in the Senate. The Bill Clerk also 
assigns numbers to all Senate bills and resolutions. All the 
information received by the Bill Clerk comes directly from the 
Senate floor in written form within moments of the action 
involved.

FORMAT FOR THE CONGRESSIONAL RECORD
  To assist the Congressional Record staff in preparing the 
sponsor's statement, or the sponsors' colloquy, for printing in 
the Congressional Record, it is requested that:
           You attach the document file to an e-mail and send 
        it to Record at Secretary (in the address book, type 
        Secretary, Record) OR type [email protected]).
           You use Word or WordPerfect.
           You deliver the hard copy of the statement, signed 
        by the sponsor, to the appropriate Cloakroom.
           The responsible staff person (the person to call 
        if there is a question about the document) sign the 
        back of the statement, including his or her phone 
        number.
           The document be formatted as follows:

                              HEALTH CARE

    Mr. SMITH. Mr. President, as our Nation wrestles with rising health 
care costs, the Senate will focus this year on legislation to address 
many complex problems.

          [Notice that the title is in all caps and indented 15 
        spaces.]
           Senators are identified as Mr., Ms., or Mrs. Only 
        the ``M'' is capped.
           Senator's last name is in all caps.
           Always address the Senator's remarks to Mr. 
        President, but never to ``Mr. Chairman'' or ``Senator 
        Smith.''
           Indent all paragraphs 5 spaces.
           Note: Please indicate ``LIVE'' or the statement 
        will be bulleted.

EDITING FLOOR REMARKS (ROOM S410-A)
    If the sponsor intends to deliver the introductory 
statement in person on the floor of the Senate, you should be 
aware that:
           Transcripts of remarks will be available to edit 
        within 60 to 90 minutes after the Senator speaks on the 
        floor.
           All copy is sent to GPO for printing every 3 
        hours; so the window for editing is between 1 and 3 
        hours after the Senator speaks.
           At adjournment, remarks generally are available 
        sooner than in the 60-90 minute range and are delivered 
        to GPO in less than 3 hours.
  If there are questions about this procedure, call 224-3152.

GPO PREFERRED SPELLINGS AND CAPITALIZATIONS FOR THE CONGRESSIONAL 
                    RECORD
  act (but Trade Act)
  administration (as in Obama administration)
  al-Qaida
  amendment
  bill (as in the GI bill)
  chairman (but Chairman Leahy, the chairman)
  cochair
  cold war
  committee (but Judiciary Committee)
  cosponsor (not co-sponsor)
  dialog
  Governor
  Ground Zero (New York site)
  Federal (but federally)
  Federal Government
  fiscal year 2003 (not FY02)
  majority, minority leader
  Member (of Congress)
  member (of the committee)
  Nation (but a nation)
  percent (not %)
  President Obama (not the president of a company or 
organization)
  rollcall (not roll call)
  September 11 (not 11th)
  State (but statehood)
  Supreme Court (and the Court)
  trust fund (always lower case, even after Social Security)
  Web site
  When referring to a city AND State, please abbreviate the 
State (as in St. Louis, MO)
  DO NOT use parentheses, Italics, underlining, or bold type
  Money should be carried as $3 million, billion, or trillion

