Congressional Record, Volume 151 Issue 17 (Wednesday, February 16, 2005)

[Congressional Record Volume 151, Number 17 (Wednesday, February 16, 2005)]
[House]
[Pages H652-H664]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

BROADCAST DECENCY ENFORCEMENT ACT OF 2005

The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, the pending
business is the vote on ordering the previous question on House
Resolution 95, on which the yeas and nays were ordered
The Clerk read the title of the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
Pursuant to clause 9 of rule XX, the Chair will reduce to 5 minutes
the minimum time for electronic voting, if ordered, on the question of
adoption of the resolution.
The vote was taken by electronic device, and there were--yeas 230,
nays 198, not voting 5, as follows:

[Roll No. 34]

YEAS--230

Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boustany
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Coble
Cole (OK)
Conaway
Cox
Crenshaw
Cubin

[[Page H653]]

Culberson
Cunningham
Davis (KY)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dingell
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Otter
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Porter
Portman
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schwarz (MI)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (NJ)
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)

NAYS--198

Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Case
Chandler
Clay
Cleaver
Clyburn
Conyers
Cooper
Costa
Costello
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Doggett
Doyle
Edwards
Emanuel
Engel
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank (MA)
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Marshall
Matheson
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Schwartz (PA)
Scott (GA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu

NOT VOTING--5

Eshoo
Oxley
Reichert
Stupak
Wynn

{time} 1242

Ms. VELAZQUEZ and Mr. BOYD changed their vote from ``yea'' to
``nay.''
Mr. BURTON of Indiana changed his vote from ``nay'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. LaTourette.) The question is on the
resolution.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Mr. BARTON of Texas. Mr. Speaker, pursuant to House Resolution 95, I
call up the bill (H.R. 310) to increase the penalties for violations by
television and radio broadcasters of the prohibitions against
transmission of obscene, indecent, and profane material, and for other
purposes, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 95, the bill is
considered read.
The text of H.R. 310 is as follows:

H.R. 310

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Broadcast Decency
Enforcement Act of 2005''.

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

Section 503(b)(2) of the Communications Act of 1934 (47
U.S.C. 503(b)(2)) is amended--
(1) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E), respectively;
(2) by inserting after subparagraph (B) the following new
subparagraph:
``(C) Notwithstanding subparagraph (A), if the violator is
(i) a broadcast station licensee or permittee, or (ii) an
applicant for any broadcast license, permit, certificate, or
other instrument or authorization issued by the Commission,
and the violator is determined by the Commission under
paragraph (1) to have broadcast obscene, indecent, or profane
material, the amount of any forfeiture penalty determined
under this section shall not exceed $500,000 for each
violation.''; and
(3) in subparagraph (D), as redesignated by paragraph (1)
of this subsection--
(A) by striking ``subparagraph (A) or (B)'' and inserting
``subparagraph (A), (B), or (C)''; and
(B) by adding at the end the following: ``Notwithstanding
the preceding sentence, if the violator is determined by the
Commission under paragraph (1) to have uttered obscene,
indecent, or profane material (and the case is not covered by
subparagraph (A), (B), or (C)), the amount of any forfeiture
penalty determined under this section shall not exceed
$500,000 for each violation.''.

SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; EXCEPTION.

Section 503(b)(2) of the Communications Act of 1934 (47
U.S.C. 503(b)(2)) is further amended by adding at the end
(after subparagraph (E) as redesignated by section 2(1) of
this Act) the following new subparagraphs:
``(F) In the case of a violation in which the violator is
determined by the Commission under paragraph (1) to have
uttered obscene, indecent, or profane material, the
Commission shall take into account, in addition to the
matters described in subparagraph (E), the following factors:
``(i) With respect to the degree of culpability of the
violator, the following:
``(I) whether the material uttered by the violator was live
or recorded, scripted or unscripted;
``(II) whether the violator had a reasonable opportunity to
review recorded or scripted programming or had a reasonable
basis to believe live or unscripted programming may contain
obscene, indecent, or profane material;
``(III) if the violator originated live or unscripted
programming, whether a time delay blocking mechanism was
implemented for the programming;
``(IV) the size of the viewing or listening audience of the
programming; and
``(V) whether the programming was part of a children's
television program as described in the Commission's
children's television programming policy (47 CFR 73.4050(c)).
``(ii) With respect to the violator's ability to pay, the
following:
``(I) whether the violator is a company or individual; and
``(II) if the violator is a company, the size of the
company and the size of the market served.
``(G) A broadcast station licensee or permittee that
receives programming from a network organization, but that is
not owned or controlled, or under common ownership or control
with, such network organization, shall not be subject to a
forfeiture penalty under this subsection for broadcasting
obscene, indecent, or profane material, if--
``(i) such material was within live or recorded programming
provided by the network organization to the licensee or
permittee; and
``(ii)(I) the programming was recorded or scripted, and the
licensee or permittee was not given a reasonable opportunity
to review the programming in advance; or--
``(II) the programming was live or unscripted, and the
licensee or permittee had no reasonable basis to believe the
programming would contain obscene, indecent, or profane
material.

[[Page H654]]

The Commission shall by rule define the term `network
organization' for purposes of this subparagraph.''.

SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

Section 503(b)(5) of the Communications Act of 1934 (47
U.S.C. 503(b)(5)) is amended--
(1) by redesignating subparagraphs (A), (B), and (C) as
clauses (i), (ii), and (iii), respectively;
(2) by inserting ``(A)'' after ``(5)'';
(3) by redesignating the second sentence as subparagraph
(B);
(4) in such subparagraph (B) as redesignated--
(A) by striking ``The provisions of this paragraph shall
not apply, however,'' and inserting ``The provisions of
subparagraph (A) shall not apply (i)'';
(B) by striking ``operator, if the person'' and inserting
``operator, (ii) if the person'';
(C) by striking ``or in the case of'' and inserting ``(iii)
in the case of''; and
(D) by inserting after ``that tower'' the following: ``, or
(iv) in the case of a determination that a person uttered
obscene, indecent, or profane material that was broadcast by
a broadcast station licensee or permittee, if the person is
determined to have willfully or intentionally made the
utterance''; and
(5) by redesignating the last sentence as subparagraph (C).

SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

Section 503(b) of the Communications Act of 1934 (47 U.S.C.
503(b)) is amended by adding at the end thereof the following
new paragraph:
``(7) In the case of an allegation concerning the utterance
of obscene, indecent, or profane material that is broadcast
by a station licensee or permittee--
``(A) within 180 days after the date of the receipt of such
allegation, the Commission shall--
``(i) issue the required notice under paragraph (3) to such
licensee or permittee or the person making such utterance;
``(ii) issue a notice of apparent liability to such
licensee or permittee or person in accordance with paragraph
(4); or
``(iii) notify such licensee, permittee, or person in
writing, and any person submitting such allegation in writing
or by general publication, that the Commission has determined
not to issue either such notice; and
``(B) if the Commission issues such notice and such
licensee, permittee, or person has not paid a penalty or
entered into a settlement with the Commission, within 270
days after the date of the receipt of such allegation, the
Commission shall--
``(i) issue an order imposing a forfeiture penalty; or
``(ii) notify such licensee, permittee, or person in
writing, and any person submitting such allegation in writing
or by general publication, that the Commission has determined
not to issue either such order.''.

SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.

Section 503 of the Communications Act of 1934 (47 U.S.C.
503) is further amended by adding at the end the following
new subsection:
``(c) Additional Remedies for Indecent Broadcasting.--In
any proceeding under this section in which the Commission
determines that any broadcast station licensee or permittee
has broadcast obscene, indecent, or profane material, the
Commission may, in addition to imposing a penalty under this
section, require the licensee or permittee to broadcast
public service announcements that serve the educational and
informational needs of children. Such announcements may be
required to reach an audience that is up to 5 times the size
of the audience that is estimated to have been reached by the
obscene, indecent, or profane material, as determined in
accordance with regulations prescribed by the Commission.''.

SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF INDECENCY
PROHIBITIONS.

Section 503 of the Communications Act of 1934 (47 U.S.C.
503) is further amended by adding at the end (after
subsection (c) as added by section 6) the following new
subsection:
``(d) Consideration of License Disqualification for
Violations of Indecency Prohibitions.--If the Commission
issues a notice under paragraph (3) or (4) of subsection (b)
to a broadcast station licensee or permittee looking toward
the imposition of a forfeiture penalty under this Act based
on an allegation that the licensee or permittee broadcast
obscene, indecent, or profane material, and either--
``(1) such forfeiture penalty has been paid, or
``(2) a court of competent jurisdiction has ordered payment
of such forfeiture penalty, and such order has become final,

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

SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLATIONS OF
INDECENCY PROHIBITIONS.

Section 309(k) of the Communications Act of 1934 (47 U.S.C.
309(k)) is amended by adding at the end the following new
paragraph:
``(5) License renewal consideration of violations of
indecency prohibitions.--If the Commission has issued a
notice under paragraph (3) or (4) of section 503(b) to a
broadcast station licensee or permittee with respect to a
broadcast station looking toward the imposition of a
forfeiture penalty under this Act based on an allegation that
such broadcast station broadcast obscene, indecent, or
profane material, and--
``(A) such forfeiture penalty has been paid, or
``(B) a court of competent jurisdiction has ordered payment
of such forfeiture penalty, and such order has become final,

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

SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDECENCY
PROHIBITIONS.

Section 312 of the Communications Act of 1934 (47 U.S.C.
312) is amended by adding at the end the following new
subsection:
``(h) License Revocation for Violations of Indecency
Prohibitions.--
``(1) Consequences of multiple violations.--If, in each of
3 or more proceedings during the term of any broadcast
license, the Commission issues a notice under paragraph (3)
or (4) of section 503(b) to a broadcast station licensee or
permittee with respect to a broadcast station looking toward
the imposition of a forfeiture penalty under this Act based
on an allegation that such broadcast station broadcast
obscene, indecent, or profane material, and in each such
proceeding either--
``(A) such forfeiture penalty has been paid, or
``(B) a court of competent jurisdiction has ordered payment
of such forfeiture penalty, and such order has become final,

then the Commission shall commence a proceeding under
subsection (a) of this section to consider whether the
Commission should revoke the station license or construction
permit of that licensee or permittee for such station.
``(2) Preservation of authority.--Nothing in this
subsection shall be construed to limit the authority of the
Commission to commence a proceeding under subsection (a).''.

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

Each calendar year beginning after the date of enactment of
this Act, the Federal Communications Commission shall submit
to the Congress an annual report that includes the following:
(1) The number of complaints received by the Commission
during the year covered by the report alleging that a
broadcast contained obscene, indecent, or profane material,
and the number of programs to which such complaints relate.
(2) The number of those complaints that have been dismissed
or denied by the Commission.
(3) The number of complaints that have remained pending at
the end of the year covered by the annual report.
(4) The number of notices issued by the Commission under
paragraph (3) or (4) of section 503(b) of the Communications
Act of 1934 (47 U.S.C. 503(b)) during the year covered by the
report to enforce the statutes, rules, and policies
prohibiting the broadcasting of obscene, indecent, or profane
material.
(5) For each such notice, a statement of--
(A) the amount of the proposed forfeiture;
(B) the program, station, and corporate parent to which the
notice was issued;
(C) the length of time between the date on which the
complaint was filed and the date on which the notice was
issued; and
(D) the status of the proceeding.
(6) The number of forfeiture orders issued pursuant to
section 503(b) of such Act during the year covered by the
report to enforce the statutes, rules, and policies
prohibiting the broadcasting of obscene, indecent, or profane
material.
(7) For each such forfeiture order, a statement of--
(A) the amount assessed by the final forfeiture order;
(B) the program, station, and corporate parent to which it
was issued;
(C) whether the licensee has paid the forfeiture order; and
(D) the amount paid by the licensee.
(8) In instances where the licensee has refused to pay,
whether the Commission referred such order to the Department
of Justice to collect the penalty.
(9) In cases where the Commission referred such order to
the Department of Justice--
(A) the number of days from the date the Commission issued
such order to the date the Commission referred such order to
the Department;
(B) whether the Department has commenced an action to
collect the penalty, and if such action was commenced, the
number of days from the date the Commission referred such
order to the Department to the date the action by the
Department commenced; and
(C) whether the collection action resulted in a payment,
and if such action resulted in a payment, the amount of such
payment.

SEC. 11. GAO STUDY OF INDECENT BROADCASTING COMPLAINTS.

(a) Inquiry and Report Required.--The General Accounting
Office shall conduct a study examining--
(1) the number of complaints concerning the broadcasting of
obscene, indecent, and profane material to the Federal
Communications Commission;
(2) the number of such complaints that result in final
agency actions by the Commission;

[[Page H655]]

(3) the length of time taken by the Commission in
responding to such complaints;
(4) what mechanisms the Commission has established to
receive, investigate, and respond to such complaints; and
(5) whether complainants to the Commission are adequately
informed by the Commission of the responses to their
complaints.
(b) Submission of Report.--The General Accounting Office
shall submit a report on the results of such study within one
year after the date of enactment of this Act to the Committee
on Commerce, Science, and Transportation of the Senate and
the Committee on Energy and Commerce of the House of
Representatives.

SEC. 12. SENSE OF THE CONGRESS.

(a) Reinstatement of Policy.--It is the sense of the
Congress that the broadcast television station licensees
should reinstitute a family viewing policy for broadcasters.
(b) Definition.--For purposes of this section, a family
viewing policy is a policy similar to the policy that existed
in the United States from 1975 to 1983, as part of the
National Association of Broadcaster's code of conduct for
television, and that included the concept of a family viewing
hour.

SEC. 13. IMPLEMENTATION.

(a) Regulations.--The Commission shall prescribe
regulations to implement the amendments made by this Act
within 180 days after the date of enactment of this Act.
(b) Prospective Application.--This Act and the amendments
made by this Act shall not apply with respect to material
broadcast before the date of enactment of this Act.
(c) Separability.--Section 708 of the Communications Act of
1934 (47 U.S.C. 608) shall apply to this Act and the
amendments made by this Act.

The SPEAKER pro tempore. After 1 hour of debate on the bill, it shall
be in order to consider an amendment without demand for division of the
question printed in House Report 109-6 if offered by the gentleman from
Michigan (Mr. Upton), or his designee, which shall be considered read,
and shall be debatable for 20 minutes, equally divided and controlled
by the proponent and an opponent.
The gentleman from Texas (Mr. Barton) and the gentleman from
Massachusetts (Mr. Markey) each will control 30 minutes of debate on
the bill.
The Chair recognizes the gentleman from Texas (Mr. Barton.)

General Leave

Mr. BARTON of Texas. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 310.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. BARTON of Texas. I yield myself such time as I may consume.
Mr. Speaker, today the Energy and Commerce Committee brings its first
major bill of the 109th Congress to the floor, H.R. 310, the Broadcast
Decency Enforcement Act of 2005.
This is a bill that we brought up in the last Congress and passed in
the last Congress, but were not able to conference successfully with
the Senate. We passed it in the last Congress with a vote of 391 to 22,
so we are going to bring this up as our first major bill this year.
This legislation makes great strides in making it safe for families
to come back again into their living rooms. After the year-before-last
Super Bowl half-time show, an unprecedented 500,000 citizens filed
complaints with the FCC, 500,000. The level of disgust in the use of
our public airwaves was then at an all-time high. The 2004 Super Bowl
crystallized the notion that something needs to be done. Today, we are
going to answer those calls.
H.R. 310 gives the FCC all of the tools necessary to encourage
broadcasters to take these fines seriously. For too long, broadcasters
have pushed the envelope. In light of the paltry fines under current
law, broadcasters have been willing to take the risk that programming
may be deemed indecent. Currently, the most the FCC may fine a
broadcaster is $32,500. It is a mere drop in the bucket, a slap on the
wrist. This bill would raise the stakes by giving the FCC the ability
to fine a maximum of $500,000 for an indecent broadcast infraction. A
$500,000 penalty gets people's attention.
The bill also takes the additional step to address the performers who
may exploit the airwaves to promote their own popularity. Under H.R.
310, if a performer, and I quote, ``willfully and intentionally makes
an indecent statement or action that he or she knows will be broadcast,
that performer can be held personally liable for up to $500,000.''
There is a clear need to hold a performer responsible for his or her
own actions, and this bill does that in a reasonable manner.
The goal is not to bankrupt anyone, but rather make the penalties do
what they are supposed to do, provide a disincentive to utter indecent
material on broadcast television and radio.
Additionally, H.R. 310 would allow the FCC to use remedies other than
fines. For instance, if a broadcaster is found liable for three
separate indecency violations during an 8-year license term, the bill
requires the FCC to hold a revocation hearing to consider revoking the
broadcaster's license. It is not an automatic revocation, but the FCC
would have to hold the hearing to consider revocation.
Today, the FCC has the power to hold a license revocation hearing
only after one indecency offense, but rarely uses it. H.R. 310 would
make it clear that after three such offenses, it is time to examine the
license. Again, this is a penalty that will make the broadcasters sit
up and take notice.

{time} 1245

I would like to thank the gentleman from Michigan (Mr. Upton),
chairman of the Subcommittee on Telecommunications and the Internet;
the gentleman from Michigan (Mr. Dingell), the ranking member of the
full committee; and the gentleman from Massachusetts (Mr. Markey), the
ranking member of the subcommittee, for their hard work on this bill.
It is a good bill. It is firm, it is fair, and it is reasonable. Most
importantly and unfortunately, it is necessary. I am an original
cosponsor of H.R. 310. I would strongly urge my colleagues to support
the bill.
Mr. Speaker, I yield the balance of my time to the gentleman from
Michigan (Mr. Upton), and I ask unanimous consent for him to control
the floor debate on the majority time on this bill.
The SPEAKER pro tempore (Mr. LaTourette). Is there objection to the
request of the gentleman from Texas?
There was no objection.
Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to commend the gentleman from Michigan (Mr.
Upton) for this legislation and commend as well the gentleman from
Texas (Mr. Barton), the gentleman from Michigan (Mr. Dingell) and
members of the committee on both the Democrat and Republican side who
have crafted this bill. It has been handled in a bipartisan fashion.
This bill is brought to the floor today in that spirit.
Mr. Speaker, this legislation is essentially identical to the bill
which overwhelmingly passed the House in the last Congress. Simply put,
this bill raises the cap on possible fines that the FCC can levy for
violations of its broadcast indecency rules from $32,500 for licensees
and $11,000 for nonlicensees to up to $500,000 in both categories.
I would like to emphasize that this legislation does not make
indecent broadcasts illegal, nor does the bill define what is or is not
indecent material.
Indecent content aired over broadcast TV and radio is already illegal
between the hours of 6 a.m. and 10 p.m., 7 days a week. What speech
constitutes indecent material will be left to the Federal
Communications Commission and to the courts of the United States of
America.
Again, this legislation simply updates the statute with regard to the
amount of money that the FCC can levy as a fine for violations of its
rules and establishes procedures for considering broadcast license
awards, renewal or revocation when repeated violations are found.
Mr. Speaker, I reserve the balance of my time.
Mr. UPTON. Mr. Speaker, I yield myself 5 minutes.
Mr. Speaker, I rise in support of this legislation. I want to
particularly thank a number of Members. I want to thank the gentleman
from Texas (Mr. Barton). Without his dedicated effort, we would not
have this bill through the fast track that we have it today, and his
support means quite a bit. I also want to thank my friends on the other
side of the aisle. I look at the gentleman from Massachusetts (Mr.
Markey), my ranking member on the subcommittee; the gentleman from
Michigan (Mr. Dingell) who is on the floor, the ranking member of the
full committee. This is a bipartisan effort.

[[Page H656]]

I would remind my colleagues that last year this legislation passed
391-22. Out of our committee this last week, it passed 46-2. That is
true bipartisan spirit and we are delighted that it is up on the floor
as early as it is. A little bit more than a year ago, I introduced
similar legislation that had all five FCC commissioners, Republican and
Democrat, on board. Each of them had lamented in a very public way that
the current level of fines was way too low, and with that we moved the
legislation that we introduced a couple of weeks ago. We passed it, as
I said, 391-22. The Senate passed similar legislation last year, 99-1.
I would note that that one that voted against it wanted the bill to be
tougher. In essence, unanimous support.
Currently, fines for indecency often go uncollected because the cost
for the Department of Justice to collect the fines is often greater
than the fines themselves. This is no longer going to be the case under
H.R. 310. The current cap for fines is $32,500. To put that into
perspective, a 30-second ad during the Super Bowl just a couple of
weeks ago cost $80,000 a second, $2.4 million for 30 seconds.
What we are talking about today is about the public airwaves which
are, of course, owned by the U.S. taxpayer. Using the public airwaves
comes with the responsibility to follow the FCC decency standards that
apply to programming that airs during the family hours from 6 in the
morning until 10 at night, the likeliest time that kids might be tuned
in.
When broadcasters sign on the dotted line to receive their licenses,
they agree to follow those decency standards, and I would note that the
courts, including the highest in the land, ruled in support of that
standard. There has to be a level of expectation when a parent turns on
the TV or the radio between those family hours that the content will be
suitable for children. A parent should not have to think twice about
the content on public airwaves. Unfortunately, the situation is far
from reality.
I would note very strongly that we do not change the standard in this
legislation. We raise the fines. I have asked for the FCC to look for
the transcripts of what they have fined. I am not going to put this in
the Record under unanimous consent or any other, but I will tell any
Member that is here or watching on the floor, if you want to see what
the FCC has fined, I have got the transcript here and it is awful, it
is vulgar, it has no place on the public airwaves, and I would defy
anyone to come over and look at the reading of these transcripts and
say that should not be banned. It should be. And broadcasters who
violate the standard ought to be fined and it ought to be more than a
slap on the wrist, and that is exactly what this legislation does.
By significantly increasing the fines for indecency, the fines will
be at a level where they no longer are going to be ignored and parents
across the country can rest easy. With the passage of this legislation
I am confident that broadcasters will think twice and, by the way, the
talent themselves as well, the disk jockeys or anybody else, will think
twice about pushing that envelope because they are going to be liable
as well, and ultimately our kids are going to be better off for it.
Mr. Speaker, I rise in strong support of H.R. 310, the Broadcast
Decency Enforcement Act of 2005. At the outset, I want to thank
Chairman Barton, Ranking Member Dingell, and Mr. Markey for their
tremendous bipartisan cooperation on this bill. I also want to thank
those Members of the House who have cosponsored the bill.
I would tell my colleagues that H.R. 310 mirrors the bill which, last
year, the House passed by a vote of 391-22.
For the record, we introduced this bill last year weeks before the
infamous Super Bowl halftime show featuring Janet Jackson and Justin
Timberlake. I was motivated to introduce this bill in large part
because I read the transcripts of those broadcasts which the FCC found
to contain indecent content. When I read some of those transcripts, I
was absolutely sickened and shocked by the filth which had passed over
the public's airwaves. Today, I have with me every broadcast indecency
Notice of Apparent Liability and Forfeiture Order issued by the FCC
since 2000. Each order contains a transcript of the offending content.
If any Member is uncertain about the merit of what we are doing here
today, I would urge them to read these transcripts. I am confident that
you will be as sickened as I am.
This legislation would significantly enhance the Federal
Communications Commission's broadcast decency enforcement authority. As
stewards of the public's airwaves, radio and television broadcasters
have an obligation to abide by the decency laws which have been on the
books for decades and have been upheld in the courts. Most of our local
broadcasters act responsibly, but there are still too many who continue
to push the envelope of indecency during the hours of 6 a.m. to 10
p.m., when children are most likely to be in the audience. I would note
that some broadcasters have taken to heart the seriousness of this
debate and, on their own, have adopted internal policies to better
control what goes over the public's airwaves over which they have
stewardship. Clear Channel's ``zero tolerance'' policy as part of its
``Responsible Broadcast Initiative'' is one such example of this good
corporate citizenship.
But for those broadcasters who continue to act irresponsibly, the FCC
needs adequate authority to enforce the law, and this bill would
deliver that.
Currently, the maximum fine which the FCC can impose for violations
of the decency laws is $32,500 per violation, which, to some
broadcasters, is merely the ``cost of doing business'' and, as such, is
hardly a deterrent. H.R. 310 would increase the maximum fine to
$500,000 per violation.
In addition, under current law, the FCC may hold a license revocation
hearing for any broadcaster who is found liable for an indecency
violation. However, the FCC has never held such a license revocation
hearing. H.R. 310, among other things, would require the FCC to hold a
license revocation hearing for any broadcaster who has been found
liable for three indecency violations; this is the so-called ``three
strikes'' provision. Importantly, in order for a ``strike'' to count
toward the three strikes triggering a license revocation hearing under
the bill, each finding of liability must have gone through an
exhaustive legal process--all the way to final judgment. This is an
important element to protect broadcasters' legitimate due process
rights. Also, it is important to note that this provision does not
require the FCC to revoke the license of a broadcaster after the third
strike, it merely requires a hearing to consider the matter with no
prejudice toward the outcome of such hearing. Of course, under current
law, the FCC can hold a license revocation hearing after the first
strike, second strike, or third strike, so all this provision does is
require, at a minimum, that such a hearing is held after the third
strike.
Other provisions in the bill would:
Ensure that the FCC, when setting penalties, takes into consideration
the degree of culpability of the violator, whether the violator is a
company or individual, and if it is a company, the size of the company
and market served.
Permit the FCC to fine an individual on the first indecency offense.
Require the FCC to complete action on indecency complaints within 180
days.
Force the FCC to take indecency violations into account during
license application, renewal and modifications, and
Compel the FCC to report to Congress annually regarding the agency's
broadcast decency enforcement activities.
This bill significantly strengthens the FCC's enforcement authority,
but does not change the underlying broadcast indecency standard which
has withstood judicial scrutiny throughout the decades. Later in this
debate, I, along with my colleague Ed Markey, will be offering a
bipartisan manager's amendment, which makes some non-controversial
changes to the bill, in large part clarifying our intent in a number of
areas. But for now, I will simply close by urging my colleagues to
support the bill and the manager's amendment which will be offered to
it.
Mr. Speaker, I include for printing in the Congressional Record the
statement of administration policy from the administration in support
of this legislation.

Executive Office of the President, Office of Management
and Budget,
Washington, DC, February 16, 2005.

Statement of Administration Policy

h.r. 310--broadcast decency enforcement act of 2005 (rep. upton (r)
michigan and 56 cosponsors)

The Administration strongly supports House passage of H.R.
310. This will make broadcast television and radio more
suitable for family viewing by giving the Federal
Communications Commission (FCC) the authority to impose
stiffer penalties on broadcasters that air obscene or
indecent material over the public airwaves. In particular,
the Administration applauds the inclusion in the bill of its
proposal to require that the FCC consider whether
inappropriate material has been aired during children's
television programming in determining the fine to be imposed
for violations of the law. The Administration looks forward
to continuing to work with the Congress to make appropriate
adjustments to the language of the bill as it moves through
the legislative process.

[[Page H657]]

Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, I yield 3 minutes to the gentlewoman from
Illinois (Ms. Schakowsky), a member of the committee.
Ms. SCHAKOWSKY. Mr. Speaker, I thank the gentleman for yielding me
this time.
I rise in opposition to H.R. 310, the Broadcast Decency Act. While I
acknowledge and appreciate that this is a bipartisan effort in bringing
this bill, I believe that this attempt to address the quality of
broadcasting is both overreaching and off the mark and I urge my
colleagues to vote against this bill.
There is already a law on the books that addresses indecency, and my
view is that we need to get a grip and not embrace a solution that
could cause more harm than good. I believe that H.R. 310 is one of
those solutions.
H.R. 310 would essentially in my view put Big Brother in charge of
deciding what is art and what is free speech. If enacted, especially
with the increased fines against individual artists, we will see self-
and actual censorship reach new and undesirable heights. Even the
threat of this legislation has already led to that kind of censorship.
For instance, on Veterans Day of 2001 and 2002, ABC aired ``Saving
Private Ryan,'' a movie about World War II, to honor those who served.
In 2004, with the threat of almost identical legislation to the one we
are considering hanging over their heads, 66 ABC affiliates refused to
run the show. They were afraid that the award-winning salute to our
veterans would be deemed indecent. They were concerned that it might
trigger at least one incident, maybe three, of indecency because it is
unclear whether saying one indecent word three times in the same
broadcast might trigger license revocation proceedings.
As we can see, the threats to our Constitution and to artistic
expression are all too real with H.R. 310. Do we not want to have
sensational performances, sensational in the best sense of the word? Do
we want a blanding down? Once we do this kind of censorship, can
political speech be far behind?
I am concerned about the continual refusal to address what I believe
is really behind the decline in broadcasting and that is the
overconcentration of media ownership. Broadcasting content has been
getting worse, not because of low fines and out-of-control talent, but
because of the shift away from local control to ownership by media
conglomerates that have no regard for the varying community standards.
Additionally, much of the furor over indecency has been explained by
a desire to protect our children. And there are many programs on TV
that I believe are inappropriate for my little grandchildren,
particularly the many which depict graphic violence over and over and
over again. But I do not want H.R. 310 or Big Brother making that
decision for me or their parents.
If I could just say that I happen to be much more concerned about the
first amendment than I am about my grandchildren seeing Janet Jackson's
nipple. I would say, let us get a grip and we can do without this
legislation. I urge a ``no'' vote.
Mr. UPTON. Mr. Speaker, I yield 2\1/4\ minutes to the gentleman from
Florida (Mr. Stearns), a member of the subcommittee and a cosponsor of
the legislation.
(Mr. STEARNS asked and was given permission to revise and extend his
remarks.)
Mr. STEARNS. Mr. Speaker, I thank the distinguished chairman of the
subcommittee for yielding me this time. I think it is appropriate that
I speak after the gentlewoman from Illinois (Ms. Schakowsky) spoke in
opposing the bill, because I support the bill. There is going to be
opposition from a few people. They are going to complain that this bill
is arbitrary; that the fine on individuals, which is $500,000, is too
much, too expensive.
But I think the gentleman from Texas (Mr. Barton) and the gentleman
from Michigan (Mr. Upton) have reached the right balance on this bill,
so let us talk a little bit about it. It is not arbitrary. There is a
lot of flexibility involved. It is not unfair or excessive.
We establish a separate standard for individuals above and beyond how
we deal with licensees so that we can go that extra mile to protect
their first amendment rights.
We should note that the penalty is up to $500,000. That means that
the FCC has the discretion to fine much lower if it needs to. We all
know that Janet Jackson is a person who can afford these fines, but if
a local small-time entertainer violates our decency laws, the FCC can
take into consideration that fact and that these individuals cannot
afford $500,000. So maybe they will issue something like $5,000 or
$10,000 or $25,000, still stiff enough to punish them for violating our
laws and maybe enough to dissuade them from doing it again. In fact,
the FCC has the discretion to fine them $1 if they see fit. So there is
a lot of flexibility.
In order to be penalized under this legislation, the individual must
have a willful and intentional profanity in order to be penalized. This
means that individuals have to act deliberately and consciously knowing
that their indecent comments will be broadcast. In other words, if an
entertainer is unaware that they are on camera and that they are
profane, they would not be held responsible for this.
The FCC can also check the list of aggravating factors that were
established and then in turn determine the fine accordingly. The FCC
will have to look at whether the comments were scripted or unscripted
or live or recorded.
Mr. Speaker, this is a reasonably balanced bill that backs our
decency standards, I think, with force. For too long, the penalties
associated with our decency laws were considered just a cost of doing
business. That is simply what they were. We will now have the potential
to have individuals put their money where their mouth is. I urge my
colleagues to support this language, support this bill and pass it.
Mr. MARKEY. Mr. Speaker, I yield 4 minutes to the gentleman from
Vermont (Mr. Sanders).
Mr. SANDERS. I thank the gentleman for yielding me this time.
Mr. Speaker, this is a bad bill. It is a dangerous bill. I get a
little bit tired of people in Congress talking about freedom, freedom,
freedom. But apparently they do not want to give the American people
the freedom to make the decisions with regard to what radio and
television programs they can watch or hear.
I am not a conservative, but let me quote from an honest conservative
who does not want government regulating what the American people see
and hear. This is a gentleman from the Cato Institute, Mr. Adam
Thierer:
``Those of us who are parents understand that raising a child in
today's modern media marketplace is a daunting task at times. But that
should not serve as an excuse for inviting Uncle Sam in to play the
role of surrogate parent for us and the rest of the public without
children.

{time} 1300

``Even if lawmakers have the best interest of children in mind, I
take great offense at the notion that government officials must this
job for me and every other American family.
``Censorship on an individual/parental level is a fundamental part of
being a good parent. But censorship at a government level is an
entirely different matter because it means a small handful of
individuals get to decide what the whole Nation is permitted to see,
hear, or think.'' Cato Institute. Honest conservatives.
Mr. Speaker, the specter of censorship is growing in America today,
and we have got to stand firmly in opposition to it. What America is
about is not my agreeing to what one says; it is my agreeing that they
have the right to say it. That is what we fought for.
I am particularly outraged when I read in Reuters on December 13,
``Sixty-six ABC affiliates refused to air the uncut movie on Veterans
Day last month'' of ``Saving Private Ryan,'' ``citing concerns they
could face fines for profanity and graphic violence from the FCC.''
The men who fought in World War II against Hitler, who gave their
lives on D-Day, we cannot see that film because ABC is afraid to show
us, and that is under the old rules.
In addition to the self-censorship imposed by ABC on ``Saving Private
Ryan,'' there is more. In January of 2004, CBS refused to air a
political advertisement, paid political advertisement, during the Super
Bowl by

[[Page H658]]

MoveOn.org that was critical of President Bush's role in creating the
Federal deficit. They could not pay to get an ad on because CBS was
nervous. Last November, CBS and NBC refused to run a 30-second ad from
the United Church of Christ because it suggested that gay couples were
welcome into their church. They were afraid to run that. And just last
month many PBS stations refused to air an episode of ``Postcards with
Buster'' because they showed a lesbian couple.
In other words, this legislation cannot be taken out of context with
the overall move towards censorship which is taking place in this
country. And I would hope that my conservative friends who get up here
every day talking about government regulators, get those government
regulators off the backs of the people, I hope they will remember their
rhetoric today. Let us not have a handful of government bureaucrats
telling radio and TV stations and the American people what they can see
and hear.
Mr. UPTON. Mr. Speaker, I yield myself 15 seconds.
I would just remind my friend in the well that the FCC specifically
dismissed complaints against ``Saving Private Ryan,'' and with regards
to the ad that was trying to be run by United Church of Christ, that
was a first amendment right that the station made themselves. I do not
think anyone thought that the FCC would fine them for the airing of
that commercial.
Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, I yield 30 seconds to the gentleman from
Vermont (Mr. Sanders).
Mr. SANDERS. Mr. Speaker, my friend from Michigan raises an important
point about ABC, not a small company. They self-censored themselves. He
is right. He is absolutely right. The FCC said that they would not fine
them, and yet 66 affiliates said, We are still nervous. ABC, not a
small station. In my State we have got small stations who are very
nervous. The issue here, and the gentleman just really said it, is
self-censorship.
Is he happy about the fact that affiliates are afraid of showing
``Saving Private Ryan''?
Mr. UPTON. Mr. Speaker, will the gentleman yield?
Mr. SANDERS. I yield to the gentleman from Michigan.
Mr. UPTON. Mr. Speaker, I would just say that the FCC said they were
not going to fine them.
Mr. SANDERS. But they did not, Mr. Speaker. ABC affiliates took it
off the air. Is the gentleman happy? Does he think that is good?
The SPEAKER pro tempore (Mr. LaTourette). The gentleman from
Vermont's (Mr. Sanders) time has expired.
Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Pitts), a member of the subcommittee, who is very
active on this issue, a co-sponsor.
Mr. PITTS. Mr. Speaker, I thank the gentleman from Texas (Mr. Barton)
and the gentleman from Michigan (Mr. Upton) for moving this important
legislation so early in the session.
This is not a new issue. But parents have been pleading with us to
take action on this for years.
Mr. Speaker, studies show that children are impacted by what they
watch on television. A study last year released by Rand shows that
children pick up sexual attitudes and behaviors from television
programs, and we know that children are very impressionable; and to
allow broadcasters to circumvent the role of parents in teaching their
children right from wrong when it comes to sexuality, violence, and
profanity is wrong; and not to act is to do just that.
Our decency laws are based on our view that society is partly
responsible for making sure public airwaves are filled with safe
material, and programs depicting profanity, sexuality, and violence
influence how kids act and see the world; and that is why we have
adopted decency standards that have withstood legal challenge and the
test of time.
This bill updates the penalties for violating those standards. For
too long government has allowed broadcasters to profit from the use of
public airwaves with little or no public accountability. We have in
effect abandoned American families in doing that. H.R. 310 sends a
clear message to the entertainment industry that we are no longer going
to idly stand by and force our parents to put up with this unacceptable
programming. H.R. 310 reaffirms our commitment to ensure safe
programming for children.
Mr. Speaker, families are tired of worrying about what their children
may hear and see every time they turn on television. They are
frustrated that the media industry has seemingly been able to broadcast
any type of behavior or speech that they feel will bring in advertising
dollars. Meanwhile, they feel that the Federal Government has sided
with the media elites and turned a blind eye to the concerns of
ordinary moms and dads. So finally Congress has heard. We are acting
for American families. We are not going to stand idly by on this topic.
I urge support for the bill.
Mr. MARKEY. Mr. Speaker, I yield 3 minutes to the gentleman from
California (Mr. Waxman).
Mr. WAXMAN. Mr. Speaker, I rise in opposition to this so-called
Broadcast Decency Enforcement Act. It increases the power of government
to censor programming that some might consider indecent and others
might not. We are already seeing the corrosive effect of this
legislation on free speech as broadcasters anticipate its enactment.
Faced with the potentially ruinous fines and the loss of their
licenses, broadcasters have begun to self-censor even permissible
speech.
Last Veterans Day, 65 ABC affiliates declined to air ``Saving Private
Ryan'' in response to an organization's campaign against it even though
the movie had aired two previous years without any indecency complaints
from the public. And the Federal Communications Commission has provided
no constructive guidance to broadcasters. It is creating greater
confusion by applying an already-vague indecency standard in an
inconsistent and arbitrary manner.
No one knows when one person's creative work will become a violation
of another person's definition of decency. Creative works that tackle
challenging themes that are controversial but important are threatened
by this legislation. Everything is objectionable to someone. A few
years ago one of our colleagues took to the House floor to condemn the
broadcast of the Oscar award-winning film ``Schindler's List.'' He was
outraged that scenes portraying Holocaust victims contained some
nudity. Legislation such as this can lead us to these kinds of absurd
results. Let us trust parents to know better than government officials
what material they want their children to be exposed to. And let us
have adults be able to watch television programming that is not so
watered down, that the only thing we will see on television is suitable
for a 5-year-old whose parents are prudes.
I reject this legislation. I plan to vote against it, and I urge my
colleagues to join me.
Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from
Illinois (Mr. Shimkus), again a cosponsor of the legislation, very
active in pursuing its goal today.
Mr. SHIMKUS. Mr. Speaker, I am a parent of a 5-year-old and I am a
prude; so I guess I meet the gentleman from California's (Mr. Waxman)
definition.
Willfully and intentionally, the use of public airwaves for indecent
material or conduct, that is what we are addressing today. And I want
to congratulate the committee, the gentleman from Texas (Chairman
Barton); the gentleman from Michigan (Mr. Dingell), ranking member; the
gentleman from Massachusetts (Mr. Markey), ranking member; and the
gentleman from Michigan (Mr. Upton), for their good work. It is not
easy, because we hear the debate, but it is very important.
The outcry of the Nation has been finally heard. This was the number
one issue that my office was contacted on in the whole last Congress.
Nothing raised the ire of the people in my district more than the
indecent use of the public airwaves, and finally we are doing something
about it.
But I do not want to lull the public into a false sense of security,
because this is addressing only one venue, the public airwaves, the
people of the broadcast communities free over-the-air TV, which is now
a minority of the use of how people receive TV shows in their home. By
far most people receive it through cable, direct satellite, we

[[Page H659]]

are going to have cellular, it is over broadband. And do my colleagues
know what this does to those venues? Nothing. Maybe it will exclude
those broadcasters in their ability, but these other venues are still
going to be held free, and I think that creates an unfair playing
field, and I am concerned.
The local broadcasters in most of our districts do a fair and upright
job. They understand the problem that the big broadcasters have imposed
upon them. They are willing to accept these stringent standards and
tighten their belts for the good of the public. But they are not going
to be able to compete with billions of channels, with other types of
broadcasters who are going to get away scot-free.
So I applaud the bill. I am excited about it. I lament the fact that
it does not go far enough.
Mr. MARKEY. Mr. Speaker, I reserve the balance of my time.
Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from New
Jersey (Mr. Ferguson), a member of the subcommittee.
Mr. FERGUSON. Mr. Speaker, I appreciate the gentleman's leadership on
this issue. I thank the gentleman from Massachusetts (Mr. Markey) for
his work on this important legislation. It is a pleasure to serve on
the subcommittee, and I look forward to continued work in this
Congress.
As a father of four young children, I am glad to see that the
Broadcast Decency Enforcement Act has once again come to the House
floor and it is on its way to passage and signature by President Bush.
While I ultimately believe that it is parents' responsibility to
closely monitor what their children watch on television, it is
difficult even for conscientious parents when programs that feature
explicit language or other subject matter are shown during times when
children are commonly watching television.
Often, parents are in the position of having to be reactive, hoping
that children will not fall victim to offensive images and words on
their TVs. Congress must act to ensure that the FCC has the tools that
it needs to prevent offensive images in our living rooms, and I believe
we have done so with this bill and this legislation.
It has been fueled by bipartisan desire to ensure that broadcasters
take responsibility for what is transmitted over their airwaves. It is
timely and it is completely appropriate considering what the American
public and our families have witnessed recently over our airwaves. We
have seen the public airwaves turned into a race to the bottom. Who can
be more offensive? Who can be more vulgar? Who can push the envelope a
little further than the next guy? Who can do whatever they can to
create a stir and to draw increased ratings by creating a buzz in our
society?
Do we not have something better to offer to American families and
American children? It is difficult to argue that our society and our
culture has not become more coarsened over the course of the last few
decades. Let us try to stop the coarsening of our culture. Let us try
to offer our families and our children something better, something more
healthy, something more wholesome.
Can we not do better? I think we can. And I think it can begin by
passing this legislation.
Mr. MARKEY. Mr. Speaker, I yield back the balance of my time.

{time} 1315

Mr. UPTON. Mr. Speaker, I just want to remind my colleagues we are
not changing the standard; we are simply raising the fines on the
existing standard. This is not about ``Saving Private Ryan.'' Those
charges were dismissed some time ago. It has aired a number of times.
But it is about what some Members have looked at, the transcripts
from broadcasts that have been fined, and I would dare to say that
there is not a Member of this body who wants some of this filth to ever
be said or broadcast again. That is what this legislation is intended
to stop, so that when we are listening to the radio or watching TV,
particularly with our kids, that they are not going to be exposed to
stuff that has been on the books for decades and the courts have
affirmed.
Mr. NEUGEBAUER. Mr. Speaker, I rise today to express my strong
support for H.R. 310, the Broadcasting Decency Enforcement Act. While
the House passed this bill last year by an overwhelming majority,
unfortunately it did not become law. As a result, the House must
reconsider this issue.
During my service in Congress, this is one of the top two issues my
constituents have mentioned in their e-mails, phone calls and letters.
My constituents are telling me that enough is enough. When broadcasters
violate indecency rules and a complaint is filed, my constituents want
it to be taken seriously by the Federal Communications Commission, FCC.
They want meaningful penalties that will make broadcasters think twice
before airing objectionable programs. They want broadcasters to be held
accountable.
Above all, they want to be able to watch an entertainment program
with their families without having them exposed to content unsuitable
for children. When supposedly family-friendly programming such as the
Super Bowl becomes a program many families don't want their children to
see, we have a problem. As a grandfather, I worry about being able to
turn on the TV and watch a program or sports event with my 3- and 5-
year-old grandsons.
The bill before us today increases penalties for broadcasters and
performers who violate decency standards over the airwaves. Raising the
cap on fines to $500,000 for broadcasts that violate the rules helps
show that Congress and the FCC are serious about punishing offenses.
The current cap is only $27,000 per violation, a drop in the bucket for
most broadcasters. When broadcasters know that indecency violations
will be taken into consideration when they ask the FCC to renew their
broadcast licenses, they are going to take additional precautions to
prevent instances of indecency. If a broadcaster accumulates three
violations, a hearing will be triggered to review revoking that
station's license.
This legislation sends a strong signal that Congress is serious about
enforcement of broadcast indecency regulations. If all Members,
constituents care about this issue as much as mine do, then this should
be an easy bill for us to support.
Mr. Speaker, in closing, I urge my colleagues to support this
legislation.
Mr. HOLT. Mr. Speaker, I rise in support of the Broadcast Decency
Enforcement Act (H.R. 310).
Like many Americans, I have been personally offended by the crudeness
and licentiousness of some material that has made its way on the public
airwaves. Television and radio networks that benefit from free use of
the public airwaves have a responsibility to refrain from airing
obscene material. Likewise, licensees must refrain from airing
programming that is indecent or profane during normal family viewing
hours. Parents should not be forced to dive for the remote control in
order to protect their children from material that they are too young
to see or hear.
Since 1978, the Federal Communications Commission has had the
authority to ``impose sanctions on licensees who engage in obscene,
indecent, or profane broadcasting.'' Under current law, the maximum
amount that a network can be fined for airing such content is $27,500.
For huge broadcasting companies that reap billions in advertising
revenue each year, this sum is an insufficient deterrent from breaking
the law.
I am happy to see that this legislation does not change existing law
regarding the standards by which television or radio programming is
judged to be indecent, profane, or obscene. I am wary of the Federal
Government overstepping its boundaries by becoming a kind of moral
police. This legislation merely bolsters the ability of the FCC to levy
appropriate punitive actions against networks that flagrantly violate
the law.
I am disappointed that Congress has declined to use this occasion to
address an equally important issue in broadcasting--diversity of
viewpoints. Until 1985, broadcasters benefiting from use of the public
airwaves had a responsibility to demonstrate that their programming
presented multiple viewpoints on issues of public interest. The repeal
of the Fairness Doctrine by the Reagan administration has hurt the
objectivity of the media and the breadth of opinions that the public
gets to hear. Americans deserve better than propaganda masquerading as
news journalism.
Though I intend to vote in favor of this legislation, the situation
in which Congress finds itself is hardly ideal. Any time the Federal
Government is forced by circumstances to strengthen limitations on the
media, it must act with extreme caution at the risk of violating this
country's most essential freedoms. It would be best if broadcasters
would voluntarily adhere to high standards of decency with regard to
the public airwaves. If broadcasters demonstrated the willingness and
capacity to regulate themselves, this legislation would not be
necessary. Unfortunately, some television and radio broadcasters have
chosen to violate decency standards, judging that the ratings boon
would be worth any fines that a violation would inevitably generate.
It is my hope that the FCC will not be forced to use the authority
that this legislation grants.

[[Page H660]]

I hope that passage of this legislation will provide an adequate
deterrent to ensure that television and radio programming on public
airwaves reflects public values. I support H.R. 310, imperfect though
it may be.
Mrs. BONO. Mr. Speaker, it has been over a year since the infamous
Super Bowl incident where a supposed ``wardrobe malfunction'' set this
Nation spinning backwards wondering why our children were exposed to a
misogynistic display of public nudity during a football game. The
provocative dancing, and sexual lyrics were a far cry from an afternoon
watching a football game. While I have the utmost respect for artists
and their artistic expressions, I am also a mother of two children and
last year the line between acceptable and unacceptable was crossed on
national television.
Hollywood has long been about us pushing the borders of artistic
expression and pushing the limits. I was married to an entertainer and
I have a family, an extended family, who are still in this business and
we know that this is about pushing the envelope. The American people
have finally said ``enough'' you've pushed too far--and the truth is,
corporate profit is increasingly becoming the bottom line. This is what
this is about at the end of the day. Janet Jackson, as I understand,
came out with a new album shortly after this tasteless stunt--surprise,
surprise.
I have always supported artists, and want to protect their ability to
express themselves and protect them against unfair legislation.
Recently, I entered into a colloquy with Chairman Barton and he assured
me that artists have a means test where their intent and ability to pay
a fine is taken into consideration under the current Communications
Act. Also, the chairman assured me that the $500,000 fine is merely a
cap and that there is discretion based upon certain factors so a
violation is not automatically going to cost an artist that amount of
money. Furthermore, an artist is not likely to be fined for a
broadcaster placing their recorded performance on the air unless they
had knowledge that it would be played or that they intended for that
performance to be played on the public airwaves. Such an example
demonstrates that an artist would have to be involved in the process
with a broadcaster in order to be found in violation of this bill.
Lastly, this bill implements the ability to pay test so that both
licensees and nonlicensees ability to pay fines will be taken into
consideration.
I would like to personally thank the Creative Coalition and the
Grammy Foundation for their attention to these issues and bringing them
to the forefront. I hope that their specific concerns with these
provisions have been addressed and that they feel comfortable with the
intentions of this bill. I look forward to working with both groups in
the future and will continue to support artist's rights as they pertain
to these issues. There is a difference between protecting artists and
upholding laws and standards on our public airwaves and I believe this
bill strikes the right balance.
While there has been an outcry from some members of the public
suggesting that this was not a big deal, the vote on this bill last
year tells a different story. This bill was voted out of the House of
Representatives last year by a vote of 399-22. That type of bipartisan
support demonstrates the outrage that each Member felt and what each
Member heard from their constituents. Entertainers, producers and the
corporate giants pushing profits have pushed the envelope too far and
are seeing the backlash from Congress, public officials, and concerned
parents and constituents. Something had to be done to scale back this
type of behavior and this bill accomplishes that goal.
Mrs. CUBIN. Mr. Speaker, it's been about a year since we last debated
broadcast indecency before the House. I was pleased to have supported
the passage of the Broadcast Decency Enforcement Act then, and I look
forward to its passage again this year.
Sometimes it takes a couple of swings of the bat before we can get a
hit and enact a bill into law. That's why I want to recognize Chairman
Upton and Chairman Barton for sticking to their guns on this bill and
bringing it before the House so promptly this year. Hopefully this
time, the other body will choose to debate and pass this bill, so it
can become the law of the land.
Many have come to the floor to explain what the Broadcast Decency
Enforcement Act will do. But, instead of rehashing the nuts and bolts
of this bill, I would rather discuss how it will improve the airwaves.
No one questions that there is an increasing coarseness in broadcast
media. And by increasing fines so they will actually act as a
deterrent, instead of a slap on the wrist, I am confident we will see
real results. In fact, since this bill was first introduced in the last
Congress, people have actually been more conscientious about what they
send over the airwaves, and the FCC has been more active in penalizing
those who have violated the standard. Passing this bill will lock that
in, and serve as a benchmark in an improving broadcast medium.
I also want to urge passage of the manager's amendment that
incorporates an amendment that I proposed to the bill. My amendment
will ensure that the FCC regularly updates its Industry Guidance
Regarding Broadcast Decency document, which was last updated April 6,
2001. This document helps illustrate precedents to FCC licensees, and I
imagine it is required reading for anyone who is affected by the
increase in indecency fines. Since we are increasing the fines in this
bill, it only seems right to ensure there are clear guidelines.
My amendment will make certain these guidelines are contemporary, and
I want to thank Chairman Upton for working with me to incorporate the
Cubin language into his amendment.
I urge passage of H.R. 310, and the manager's amendment.
Ms. GINNY BROWN-WAITE of Florida. Mr. Speaker, like many of my
colleagues, last year, I received hundreds of calls from angered
constituents after the obscene display at the Super Bowl.
What was most frustrating was that I had to explain that the FCC's
hands were tied; the FCC wanted to punish the broadcasters who allowed
this material to be displayed before our children during prime time,
but they could not.
A $27,500 fine does nothing to deter networks that generate billions
of dollars in revenue.
Today, however, I can tell my constituents that I voted in favor of
the Broadcast Decency Act.
Introduced by my colleague, Representative Upton, this bill increases
the slap on the wrist in penalties to a fair punishment of $500,000 for
broadcasters who break the rules.
Freedom of speech should be protected but not at the cost of our
children who simply want to catch a football game.
I look forward to voting in favor of this bill and thank
Representative Upton for his efforts.
Mr. BACA. Mr. Speaker, I rise in full support of H.R. 310, a bill
that would increase the fines the Federal Communications Commission can
impose for the broadcast of obscene, indecent, or profane material.
The level of violent and sexual content in all forms of media has
reached a point where Congress has no choice but to act.
The proliferation of indecent content in the media continues not only
through television and movies but also through video games and the
Internet--mediums that our children now have easier access to. A
growing body of evidence suggests that these messages can be harmful to
a child's development.
As Democrats and Republicans we must continue to work together to
address these issues. That is the only way we will be able prevent our
children from being needlessly exposed to violent and sexual content.
The failure of the FCC to adequately scrutinize Spanish-language
radio broadcasts for indecent content has been particularly troubling.
In the last decade alone, the number of Spanish-language outlets in
television and radio nationwide has nearly doubled. With this growth
comes an increasing necessity to improve the FCC's ability to enforce
its decency standards in an increasingly diverse market place. The
Spanish-speaking community is no less deserving of protection from
blatant indecency than other audiences.
As the co-chair of the Congressional Sex and Violence in the Media
Caucus with my friend and colleague, Congressman Tom Osborne, I believe
that we must prevent violence by and against children through
legislation, education, outreach and advocacy.
I hope that other Members of Congress and the public will continue to
work to protect our children from obscene and inappropriate media.
I commend Congressman Upton and Congressman Markey for their
sponsorship of this bill and support its passage.
Mr. DINGELL. Mr. Speaker, I rise in support of H.R. 310, the
Broadcast Decency Enforcement Act of 2005.
I commend my full committee and subcommittee chairmen,
Representatives Barton and Upton, and Subcommittee Ranking Member
Markey for their work and efforts to bring this ever-improving bill to
the House floor so quickly. H.R. 310 is strong, bipartisan legislation
worthy of support. This legislation is nearly identical to the bill
passed by the House almost 1 year ago by a vote of 391 to 22. That bill
failed to become law.
The need for this legislation, however, has not diminished in the
past year. For too long, the Federal Communications Commission, FCC,
has been asleep at the wheel when it came to incidents of public
broadcast indecency and the ensuing complaints. Congress's attention to
the issue of broadcast indecency last year awakened the commission from
its years of slumber. We finally saw an FCC that more properly
understood the need to enforce laws against indecency over the public
airwaves.

[[Page H661]]

Unfortunately, consumer complaints continue to receive haphazard
treatment at the commission. Moreover, there continues to be a betrayal
of the public trust. Some broadcasters persist in crossing the line,
putting their own drive for ratings and profits ahead of their
responsibilities to the public. This is regrettable behavior. Most
broadcasters are decent and proper stewards of the public airwaves, but
the poor judgment of a select few casts a dark shadow on the entire
industry. Perhaps these wayward broadcasters mistakenly thought that
the kickoff of a new Super Bowl would see this issue recede and
lawmakers would ``let it be.'' Let me be clear, the need to enforce the
indecency laws is greater than any one malfunction.
It is important for Congress to ensure that the FCC not only
maintains its newfound alertness, but that it also has the right tools
to ensure proper enforcement against indecency over the public
airwaves.
H.R. 310 will ensure that the FCC has such tools. First, the bill
responds to the overriding need to raise the maximum indecency fine to
a level that will deter even the largest companies. Second, the bill
compels the FCC to use the license renewal and revocation processes to
examine more closely the fitness of certain licensees, particularly
broadcasters that repeatedly violate the FCC's rules. Third, needed
attention is also paid to the consumer complaint process by compelling
the FCC to act on complaints within a specific time-frame. Fourth, this
bill will make the FCC more accountable by requiring regular reports to
Congress on its enforcement activities. This reporting requirement
should encourage any new FCC chairman to carry on the moral virtue that
came rather late to the outgoing chairman.
Our constituents have made it clear that they are fed up with the
level of sex and violence on television and radio. They deserve to be
able to turn on their television or radio at appropriate times without
being bombarded by filth and smut. The increased oversight and
penalties contained in H.R. 310 should provide the proper incentive to
broadcasters to keep it clean. Accordingly, I urge my colleagues to
support this sensible bill.
Mr. PAUL. Mr. Speaker, Americans are right to be outraged at much of
the content of broadcast television and radio today. Too many
television and radio programs regularly mock the values of millions of
Americans and feature lewd, inappropriate conduct. It is totally
legitimate and even praiseworthy for people to use market forces, such
as boycotts of the sponsors of the offensive programs, to pressure
networks to remove objectionable programming. However, it is not
legitimate for Congress to censor broadcast programs.
The First Amendment says, ``Congress shall make no law . . .
abridging the freedom of speech. . . .'' It does not make an
expectation for broadcast television. Some argue that broadcast speech
is different because broadcasters are using the ``people's airwaves.''
Of course, the people do not really control the airwaves any more than
the people control the government in the People's Republic of China.
Instead, the people's airwaves is a euphemism for government control of
the airwaves. Of course, government exceeded its Constitutional
authority when it nationalized the broadcast industry.
Furthermore, there was no economic justification for Congress
determining who is, and is not, allowed to access the broadcast
spectrum. Instead of nationalizing the spectrum, the Federal Government
should have allowed private parties to homestead parts of the broadcast
spectrum and settle disputes over ownership and use through market
processes, contracts, and, if necessary, application of the common law
of contracts and torts. Such a market-based solution would have
provided a more efficient allocation of the broadcast spectrum than has
government regulation.
Congress used its unconstitutional and unjustified power-grab over
the allocation of broadcast spectrum to justify imposing Federal
regulations on broadcasters. Thus, the Federal Government used one
unconstitutional action to justify another seizing of regulatory
control over the content of a means of communication in direct
violation of the first amendment.
Congress should reject H.R. 310, the Broadcast Decency Enforcement
Act, because, by increasing fines and making it easier for governments
to revoke the licenses of broadcasters who violate Federal standards,
H.R. 310 expands an unconstitutional exercise of Federal power. H.R.
310 also establishes new frontiers in censorship by levying fines on
individual artists for violating FCC regulations.
Congress should also reject H.R. 310 because the new powers granted
to the FCC may be abused by a future administration to crack down on
political speech. The bill applies to speech the agency has determined
is ``obscene'' or ``indecent.'' While this may not appear to include
political speech, I would remind my colleagues that there is a serious
political movement that believes that the expression of certain
political opinions should be censored by the government because it is
``hate speech.'' Proponents of these views would not hesitate to
redefine indecency to include hate speech. Ironically, many of the
strongest proponents of H.R. 310 also hold views that would likely be
classified as ``indecent hate speech.''
The new FCC powers contained in H.R. 310 could even be used to censor
religious speech. Last year, a group filed a petition with the United
States Department of Justice asking the agency to use Federal hate
crimes laws against the directors, producers, and screenwriters of the
popular movie, ``The Passion of the Christ.'' Can anyone doubt that, if
H.R. 310 passes, any broadcaster who dares show ``The Passion'' or
similar material will risk facing indecency charges? Our founders
recognized the interdependence of free speech and religious liberty;
this is why they are protected together in the first amendment. The
more the Federal Government restricts free speech, the more our
religious liberties are endangered.
The reason we are considering H.R. 310 is not unrelated to questions
regarding state censorship of political speech. Many of this bill's
supporters are motivated by the attacks on a Member of Congress, and
other statements critical of the current administration and violating
the standards of political correctness, by ``shock jock'' Howard Stern.
I have heard descriptions of Stern's radio program that suggest this is
a despicable program. However, I find even more troubling the idea that
the Federal Government should censor anyone because of his comments
about a Member of Congress. Such behavior is more suited for members of
a Soviet politburo than members of a representative body in a
constitutional republic.
The Nation's leading conservative radio broadcaster, Rush Limbaugh,
has expressed opposition to a Federal crackdown on radio broadcast
speech that offends politicians and bureaucrats:

If the government is going to ``censor'' what they think is
right and wrong. . . . what happens if a whole bunch of John
Kerrys . . . start running this country. And decide
conservative views are leading to violence?
I am in the free speech business. It's one thing for a
company to determine if they are going to be party to it.
It's another thing for the government to do it.

Mr. Speaker, I am also concerned that the new powers H.R. 310 creates
will be applied in a manner that gives an unfair advantage to large
media conglomerates. While the FCC will occasionally go after one of
the major media conglomerates when it does something especially
outrageous, the agency will likely spend most of its energies going
after smaller outlets such as college and independent radio stations.
Because college and independent stations lack the political clout of
the large media companies, the FCC can prosecute them without incurring
the wrath of powerful politicians. In addition, because these stations
often cater to a small, niche audience, FCC actions against them would
not incur the public opposition it would if the agency tried to kick
``Desperate Housewives'' off the air. Most significantly, college and
independent stations lack the financial and technical resources to
absolutely guarantee that no violations of ambiguous FCC regulations
occur and to defend themselves adequately if the FCC attempts to revoke
their licenses. Thus, college and independent radio stations make
tempting targets for the FCC. My colleagues who are concerned about
media concentration should consider how giving the FCC extended power
to revoke licenses might increase media concentration.

H.R. 310 should also be rejected because it is unnecessary. Major
broadcasters' profits depend on their ability to please their audiences
and thus attract advertisers. Advertisers are oftentimes ``risk
adverse,'' that is, afraid to sponsor anything that might offend a
substantial portion of the viewing audience, who they hope to turn into
customers. Therefore, networks have a market incentive to avoid
offending the audience. It was fear of alienating the audience, and
thus losing advertising revenue, that led to CBS's quick attempt at
``damage control'' after the last year's Super Bowl. Shortly before the
2004 Super Bowl, we witnessed a remarkable demonstration of the power
of private citizens when public pressure convinced CBS to change plans
to air the movie ``The Reagans,'' which outraged conservatives
concerned about its distortion of the life of Ronald Reagan.
Clearly, the American people do not need the government to protect
them from ``indecent'' broadcasts. In fact, the unacknowledged root of
the problem is that a large segment of the American people has chosen
to watch material that fellow citizens find indecent. Once again, I
sympathize with those who are offended by the choices of their fellow
citizens. I do not watch or listen to the lewd material that
predominates on the airwaves today, and I am puzzled that anyone could
find that sort of thing entertaining. However, my colleagues should
remember that government action cannot improve the people's morals; it
can only reduce liberty.

[[Page H662]]

Mr. Speaker, H.R. 310 is the latest in an increasing number of
attacks on free speech. For years, those who wanted to regulate and
restrict speech in the commercial marketplace relied on the commercial
speech doctrine that provides a lower level of protection to speech
designed to provide a profit to the speaker. However, this doctrine has
no constitutional authority because the plain language of the first
amendment does not make any exceptions for commercial speech.
Even the proponents of the commercial speech doctrine agreed that the
Federal Government should never restrict political speech. Yet, this
Congress, this administration, and this Supreme Court have restricted
political speech with the campaign finance reform law. Meanwhile, the
Department of Justice has indicated it will use the war against
terrorism to monitor critics of the administration's foreign policy,
thus chilling anti-war political speech. Of course, on many college
campuses students have to watch what they say lest they run afoul of
the rules of ``political correctness.'' Even telling a ``politically
incorrect'' joke can bring a student up on charges before the thought
police. Now, self-proclaimed opponents of political correctness want to
use Federal power to punish colleges that allow the expression of views
they consider ``unpatriotic'' and/or punish colleges when the
composition of the facility does not meet their definition of
diversity.
These assaults on speech show a trend away from allowing the free and
open expression of all ideas and points of view toward censoring those
ideas that may offend some politically powerful group or upset those
currently holding government power. Since censorship of speech
invariably leads to censorship of ideas, this trend does not bode well
for the future of personal liberty in America.
In conclusion, Mr. Speaker, because H.R. 310 is the latest assault in
a disturbing pattern of attacks on the first amendment, I must vote
against it and urge my colleagues to do the same.
Mr. STARK. Mr. Speaker, I rise in opposition to H.R. 310, the so-
called Broadcast Decency bill.
I am as concerned as any parent about the content on television. I do
not want my young children or grandchildren exposed to programming that
is unsuitable for them. Yet, nowhere in this bill is there a definition
of indecent material. All this bill does is increase fines over tenfold
for what the Bush administration deems to be indecent.
Our laws are only as good as the people enforcing them and I do not
trust this administration to exercise the appropriate judgment without
clear standards. I'm concerned they'll use this new enforcement
authority as a Trojan horse to arbitrarily target programming they deem
unacceptable.
I could not possibly give this administration more leeway to choke
free speech. We have reached the point in this country where
questioning our leaders is called unpatriotic and characterized as
aiding the terrorists; columnists are paid our tax dollars by the
Federal Government to spout the Bush administration's official
propaganda; the very agency charged with maintaining a diversity of
ideas on the airwaves wants to give free rein to a handful of
corporations to control information; and where stations refuse to air
the movie ``Saving Private Ryan'' lest the Chairman of the Federal
Communications Commission might be ordered to find a sacrificial lamb
to appease the religious right.
I do not support the rush to media conglomeration and I do not trust
religious zealots to decide for every American what they can and can
not watch. Since that is who this administration is serving, I vote
``no'' on giving them more authority to undermine freedom of speech.
Mr. UPTON. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. LaTourette). All time for debate on the
bill has expired.

Amendment Offered by Mr. Upton

Mr. UPTON. Mr. Speaker, I offer an amendment.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment offered by Mr. Upton:
In section 503(b)(2)(F)(ii) of the Communications Act of
1934 as amended by section 3 of the bill, strike ``and'' at
the end of subclause (I), strike the period at the end of
subclause (II) and insert ``; and'', and after subclause (II)
insert the following new subclause:

(III) if the violator is an individual, the financial
impact of a forfeiture penalty on that individual.

In section 503(b)(5)(B)(iv) of the Communications Act of
1934 as amended by section 4(4)(D) of the bill, strike
``willfully or intentionally made the utterance'' and insert
``willfully and intentionally made the utterance, knowing or
having reason to know that the utterance would be
broadcast''.
In paragraphs (1), (3), (4), and (6) of section 10, strike
``year covered'' and insert ``years covered''.
In section 10, by strike ``Each calendar'' and insert the
following:
(a) Required Contents.--Each calendar
Add at the end of section 10 the following new subsection:
(b) Years Covered.--For purposes of this section, the
``years covered'' by the report required under this section
shall be the years beginning with calendar year 2000 through
the calendar year preceding the year in which the report is
submitted.
In section 11 of the bill, strike ``General Accounting
Office'' each place it appears and insert ``Government
Accountability Office''.
In section 11(a) of the bill, after ``study examining''
insert the following: ``, with respect to calendar year 2000
through the calendar year preceding the year in which the
report is submitted''.
After section 10, insert the following new section (and
redesignate the succeeding sections accordingly):

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

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

The SPEAKER pro tempore. Pursuant to House Resolution 95, the
gentleman from Michigan (Mr. Upton) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentleman from Michigan (Mr. Upton).
Mr. UPTON. Mr. Speaker, I yield myself 4 minutes.
Mr. Speaker, I rise in support of this manager's amendment offered by
me and the gentleman from Massachusetts (Mr. Markey). I want to again
thank the gentleman from Massachusetts (Mr. Markey), the gentleman from
Texas (Chairman Barton), and the gentleman from Michigan (Mr. Dingell)
for their bipartisan cooperation on this amendment, as well as the
entire legislation.
What this amendment does is it makes seven noncontroversial changes
to the underlying bill.
First, the amendment clarifies that the liability standard for non-
licensees is willful and intentional.
Second, the amendment clarifies that for individual non-licensees to
be found liable, their indecent statements must have made knowing or
having reason to know that the statements would be broadcast.
Third, the amendment requires the FCC to look at the impact of a
forfeiture penalty on an individual.
I want to pay a special tribute to the gentlewoman from California
(Mrs. Bono) for her work on these three issues during the committee
consideration of this bill. These three changes simply clarify our
intent to ensure that performers as non-licensees are treated fairly.
During the committee consideration, there were some concerns
expressed that the individual-performer liability provisions in H.R.
310 could be used to fine artists that use offensive language when
their recordings are played on the radio. The phrase ``willfully and
intentionally'' in this amendment is meant to include those situations
where an individual intentionally utters material consciously and
deliberately which he or she knows or has reason to know will be
broadcast. For instance, a live interview of a player at a basketball
game or Janet Jackson's performance at the Super Bowl are clear
examples where the performer intentionally said or did something
knowing it would be broadcast.
Alternatively, when an artist records a song in a studio, he or she
perhaps has a hope that the song will be broadcast, but does not sing
the lyrics with the intent to broadcast at that moment or even knowing
that it will be broadcast in the future.
Similarly, if an athlete or a coach in the heat of a sporting event,
such a baseball player being hit by a pitch, reflexively yells out an
obscene, indecent, profane utterance caught by a field microphone, the
situation would also not be captured by the willful and intentional
standard, as his or her actions were not intentionally done and knowing
that they would be broadcast.
In addition, the manager's amendment underscores the FCC's
requirement that when setting penalties for

[[Page H663]]

individual performers, it must look at the ability of that individual
to pay, as required by existing law, and the FCC must take into
consideration the impact of the forfeiture penalties on that
individual.
Clearly, not all individuals who may run afoul of the law have the
same ability to pay. A pro athlete or a blockbuster recording artist
may have significantly greater worth than a struggling artist or
college athlete. That is why we require the FCC to factor this in when
setting such penalties, and underscore that in this amendment.
Fourth, the amendment changes the General Accounting Office to its
new name of Government Accountability Office.
Fifth, the amendment requires the FCC's annual indecency enforcement
report to include data going back to 2000.
Sixth, it requires the GAO's indecency enforcement report to include
data going back to 2000.
Lastly, the amendment requires the FCC to update its broadcast
indecency enforcement guidelines at least every 3 years.
I want to thank the gentlewoman from Wyoming (Mrs. Cubin) for her
work on that issue, I want to thank the gentleman from Massachusetts
(Mr. Markey) for his bipartisan cooperation and cosponsoring this
amendment with me, and thank the Committee on Rules for making it in
order. I would urge all of my colleagues to support it.
Mr. Speaker, I reserve the balance of my time.
Mr. MARKEY. Mr. Speaker, although not opposed to the amendment, I ask
unanimous consent to claim the time in opposition.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Massachusetts?
There was no objection.
The SPEAKER pro tempore. The gentleman from Massachusetts (Mr.
Markey) is recognized for 10 minutes.
Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I fully support this amendment, which incorporates a
number of changes to the bill. We have worked together in a bipartisan
fashion to develop this package of refinements to the legislation.
These are noncontroversial changes, and I urge Members to support the
amendment.
The first change further clarifies that we intend for the FCC when
levying a fine on a non-licensee to take into account the financial
impact of a particular fine on an individual when considering an
individual's ability to pay.
The second change merely adjusts the standard for an utterance of an
indecency so that it reads ``willfully and intentionally uttered,'' so
that there is no confusion.
As the gentleman from Michigan has pointed out, it is not the
intention of either the majority or the minority to have an act which
is not intentional to be penalized by this legislation. The gentleman
from Michigan did outline a good example of how such an occurrence
could be wrongly interpreted unless the language ``intentionally'' was
added to the legislation.
We thank the majority for accommodating the concern which the
minority had on that issue. We think that it definitely strengthens the
legislation, and it ensures that it will be used only for the purpose
for which the legislation is intended and not to reach unintentional
behavior which may have incidentally been uttered.
Thirdly, the GAO study in the bill will be limited to looking back
and analyzing indecency issues at the FCC only to the year 2000.
Finally, the amendment includes a provision offered by our colleague,
the gentlewoman from Wyoming (Mrs. Cubin), which tasks the FCC with
updating its guidance for broadcast licensees with regard to these
issues.
Again, these are noncontroversial changes, and I thank the gentleman
from Michigan (Chairman Upton) for his assistance on these
clarifications, and I urge Members to support the amendment. Again, I
thank all of the Members for their cooperation in this legislative
process.
Mr. Speaker, I yield 3 minutes to the gentleman from New York (Mr.
Nadler).
Mr. NADLER. Mr. Speaker, I do not oppose this amendment, but I do
oppose this bill. Like many Americans, I exercise my right not to view
programming I find offensive by using that miracle of modern
technology, the remote control. It lets you change the channel or even
turn off the TV entirely. I recommend everyone buy one and learn how to
use it. If you want to protect your children, there is the V-chip for
that purpose. People ought to use that too.
But the Puritans of this House and elsewhere in government are not
satisfied with free choice and the free market. Instead, they want the
government to decide what is or is not appropriate for the public to
watch or listen to.
Just recently, for example, the Secretary of Education on his second
day on the job snapped into action and threatened public broadcasting
funding if they dared air a show in which real live families with real
live same-sex parents would appear. It was actually a show about making
maple syrup, not an advocacy piece about family arrangements. But it
was too much for the Secretary of Education.
``Many parents would not want their young children exposed to the
lifestyles portrayed in this episode,'' Spellings wrote in her
threatening letter to the CEO of PBS. Who asked her?
Then there was the strange case of SpongeBob Square Pants, a cartoon
character who appeared in a video promoting tolerance entitled ``We Are
Family.'' Who were the purveyors of this objectionable material? Well,
among others, the Anti-Defamation League's successful ``World of
Difference'' program and Sesame Street's ``Sesame Foundation.'' It
seems some self-appointed guardians of our morals are fine with the
idea of tolerance, unless it includes people they don't like. ``We see
the video as an insidious means by which the organization is
manipulating and potentially brainwashing kids,'' Paul Batura, a
spokesman for Focus on the Family, told the New York Times. ``It is a
classic bait and switch.''
A former Member of this House condemned NBC for airing ``Schindler's
List,'' saying that the Holocaust film took network television ``to an
all time low, with full-frontal nudity, violence and profanity'' during
family viewing time. He said that NBC's decision to air the movie on
Sunday evening should outrage parents and decent-minded individuals
everywhere.
Then-Senator Alfonse D'Amato properly replied that ``to equate the
nudity of Holocaust victims in the concentration camps with any sexual
connotation is outrageous and offensive.'' But with this bill, where
would we be if that former Member of the House were a member of the
FCC?
So what next? We are already seeing a great deal of self-censorship
as the self-appointed guardians of public decency go after anything
that offends them personally. We saw recently many affiliates of ABC
refuse to show ``Saving Private Ryan'' because they were afraid of the
fines that the FCC might, might, levy. So there is self-censorship
because of the chilling effect.
Evidently, the Members of this House do not trust Americans to make
up their own minds and the large corporations that own media
conglomerates are not about to risk profits by running afoul of the
people with power and their own agenda.
I would suggest that if my colleagues are looking for obscene and
indecent material, they can turn off their televisions and log on to
WWW.Congress.Gov. On the Committee on the Judiciary Web site you can
find sexually graphic material, including graphic sexual accounts in
the Starr Report of several years ago. Children doing their homework
everywhere can read this.
In this last Congress, a Member of this House introduced legislation
containing eight words that would probably draw half a million dollar
fines under this legislation. Our Legislative Information System still
has this up for anyone to read.
Mr. Speaker, Congress and the FCC have no business telling people
what they can or cannot watch, what sorts of tolerance it will or will
not tolerate, or what values parents may or may not desire to instill
in their children. You do not have to love indecency to oppose this
bill. You merely have to have faith in and respect for the judgment of
the American people, and a distrust in the omnipotent judgment of
government bureaucrats. I urge the defeat of this bill.

[[Page H664]]

Mr. UPTON. Mr. Speaker, I yield 1 minute to the gentleman from
Alabama (Mr. Aderholt).
Mr. ADERHOLT. Mr. Speaker, I rise today in strong support of H.R.
310. Passage of this bill will mark a very important step, in my
opinion, toward protecting American children.
I especially do want to thank the committee for their work on this
bill, and the gentleman from Texas (Chairman Barton) and the gentleman
from Michigan (Chairman Upton) for their work on this legislation.
The purpose, of course, of the legislation that we are discussing
today is to return decent, family-friendly broadcast television and
radio to families across America. I should note that this legislation
in no way changes the FCC's current definition of obscenity, indecency,
or profanity. Rather, it enables the agency to enforce the existing
rules.
As has been stated here already on the floor today, it would allow
the FCC to impose a fine of half a million dollars against broadcasters
for every violation of obscene, indecent, and profane material. Of
course, additionally the bill will allow the FCC to fine networks and
entertainers for up to half a million dollars if they willfully or
intentionally violate indecency standards by airing obscene, indecent,
or profane material.
Mr. Speaker, I would urge the passage of H.R. 310 today and would
urge my colleagues to wholeheartedly support this legislation.
Mr. MARKEY. Mr. Speaker, I have no further speakers, so I yield back
the balance of my time, with thanks to the chairman of the committee
for his great work.
Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I just want to thank the staff, Kelly Cole, Will
Nordwind and Howard Waltzman. They have been terrific working with
staffs on both sides.
I remind my colleagues this passed overwhelmingly in not only the
committee, but last year as well, and also in the Senate. I urge my
colleagues to support it.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Pursuant to House Resolution 95, the
previous question is ordered on the bill and the amendment offered by
the gentleman from Michigan (Mr. Upton).
The question is on the amendment offered by the gentleman from
Michigan (Mr. Upton).
The amendment was agreed to.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. UPTON. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 389,
nays 38, not voting 6, as follows:

[Roll No. 35]

YEAS--389

Aderholt
Akin
Alexander
Allen
Andrews
Baca
Bachus
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Becerra
Berkley
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown (SC)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Cleaver
Clyburn
Coble
Conaway
Cooper
Costa
Costello
Cox
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Etheridge
Evans
Everett
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Gutierrez
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hinojosa
Hobson
Hoekstra
Holden
Holt
Hooley
Hostettler
Hoyer
Hulshof
Hunter
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McGovern
McHenry
McHugh
McIntyre
McKeon
McKinney
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Oxley
Pallone
Pascrell
Pastor
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Portman
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Salazar
Sanchez, Loretta
Saxton
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Souder
Spratt
Stearns
Strickland
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Visclosky
Walden (OR)
Walsh
Wamp
Watt
Weiner
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wu
Young (AK)
Young (FL)

NAYS--38

Abercrombie
Ackerman
Baird
Berman
Clay
Conyers
Delahunt
Farr
Fattah
Frank (MA)
Grijalva
Harman
Hastings (FL)
Hinchey
Honda
Kucinich
Lee
Lewis (GA)
Lofgren, Zoe
McDermott
Nadler
Owens
Paul
Payne
Sabo
Sanchez, Linda T.
Sanders
Schakowsky
Scott (VA)
Serrano
Sherman
Stark
Velazquez
Wasserman Schultz
Waters
Watson
Waxman
Woolsey

NOT VOTING--6

Cole (OK)
Eshoo
Kaptur
Reichert
Stupak
Wynn

{time} 1400

Mr. HASTINGS of Florida changed his vote from ``yea'' to ``nay.''
Mr. ISRAEL and Ms. BERKLEY changed their vote from ``nay'' to
``yea.''
So the bill was passed.
The result of the vote was announced as above recorded.
The motion to reconsider is laid upon the table.
Stated for:
Mr. COLE of Oklahoma. Mr. Speaker, on Wednesday, February 16, 2005, I
was unavoidably detained due to a prior obligation.
Had I been present and voting, I would have voted as follows: (1)
Rollcall No. 35: ``Yes'' (Final Passage of H.R. 310).

____________________