[Senate Report 108-253]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 471
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-253
_______________________________________________________________________

                                     

                                                       Calendar No. 471
          

               BROADCAST DECENCY ENFORCEMENT ACT OF 2004

                               ----------                              

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2056



                                     

                 April 5, 2004.--Ordered to be printed
?

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      one hundred eighth congress

                             second session

                     JOHN McCAIN, Arizona, Chairman

TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas          Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas                JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois        RON WYDEN, Oregon
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
                                     FRANK LAUTENBERG, New Jersey

           Jeanne Bumpus, Staff Director and General Counsel

                   Rob Freeman, Deputy Staff Director

                  Robert W. Chamberlin, Chief Counsel

      Kevin D. Kayes, Democratic Staff Director and Chief Counsel

                Gregg Elias, Democratic General Counsel

                                  (ii)
                                                       Calendar No. 471
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-253

======================================================================



 
               BROADCAST DECENCY ENFORCEMENT ACT OF 2004

                                _______
                                

                 April 5, 2004.--Ordered to be printed

                                _______
                                

       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2056]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2056) ``A Bill To increase the 
penalties for violations by television and radio broadcasters 
of the prohibitions against transmission of obscene, indecent, 
and profane language,'' having considered the same, reports 
favorably thereon with amendments, and an amendment to the 
title, and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

  The objective of this legislation is to increase and 
strengthen the enforcement mechanisms available to the Federal 
Communications Commission (FCC or Commission) to combat the 
broadcasting of indecent, obscene, and profane material over 
the airwaves. The legislation is also intended to assess the 
effectiveness of technological tools designed to block violent 
programming, and if necessary, prohibit the distribution of 
violent programming during hours when children are likely to 
comprise a substantial portion of the audience.

                          Background and Needs

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

            I. INDECENT PROGRAMMING ON RADIO AND TELEVISION

                        A. INDECENCY REGULATION

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

                    B. COMMISSION ENFORCEMENT ACTION

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

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

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

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

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

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


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

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

               C. POSSIBLE RELATIONSHIP TO MEDIA OWNERSHIP

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

                  II. VIOLENT PROGRAMMING ON TELEVISION

                A. IMPACT OF MEDIA VIOLENCE ON CHILDREN

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

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

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

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

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

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

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

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

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

                     B. PRIOR CONGRESSIONAL ACTION

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

                       (C) SAFE HARBOR REGULATION

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

(1) SAFE HARBOR UNDER AN ACT IV CASE ANALYSIS

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

(2) THE STRICT SCRUTINY TEST

  The strict scrutiny test, which was used in the ACT IV case, 
is the most stringent test used to analyze the 
constitutionality of a First Amendment challenge. The following 
discussion assesses the violence safe harbor approach under 
strict scrutiny, not because it is certain that this test will 
apply, but because, if the violence safe harbor approach passes 
the strict scrutiny test, it certainly would pass any lesser 
standard of review. Regulation will pass the strict scrutiny 
test if the regulation is narrowly tailored to meet a 
compelling governmental interest.
  Congress has developed a long and detailed record to justify 
the violence safe harbor approach. Congress has held hearings 
to explore various approaches to television violence in every 
decade since the 1950s. The Senate Committee on Commerce, 
Science, and Transportation alone has held 25 hearings over the 
past 3 decades on this topic, including at least 5 hearings 
specifically on the safe harbor approach. The Committee has 
laid extensive groundwork for considering the least restrictive 
means of protecting children from violence on television. By 
contrast, the Byrd amendment, the legislation at issue in the 
ACT IV case, was adopted on the Senate floor without any 
Committee hearings.

(A) COMPELLING GOVERNMENTAL INTEREST

          The government has several compelling interests in 
        protecting children from the harmful effects of viewing 
        violence which are discussed below: an interest in 
        protecting children from harm, an interest in 
        protecting society in general, an interest in helping 
        parents raise their children, and an interest in the 
        privacy of the home. Each of these are discussed below.

 HARM TO CHILDREN

          Government has a compelling interest in protecting 
        children from the harm caused by television violence. 
        As several witnesses have testified before the 
        Committee and numerous studies have concluded, 
        children's viewing of violence on television encourages 
        violent and anti-social behavior, either as children or 
        later as adults. These studies have demonstrated a 
        causal connection between viewing violence and violent 
        behavior.\25\ These studies have included field studies 
        of the effect of television on persons in real life and 
        laboratory studies. While the study in 1972 by the 
        Surgeon General concluded that there was a causal 
        relationship between viewing violence and behavior 
        primarily among those children predisposed to violence, 
        more recent research by NIMH and others demonstrates 
        that violent television programming affects almost all 
        children. Over 35 years of laboratory and real-life 
        studies provide evidence that televised violence is a 
        cause of aggression among children, both 
        contemporaneously, and over time. Television violence 
        affects youngsters of all ages, both genders, at all 
        socio-economic levels, and at all levels of 
        intelligence. The effect is not limited to children who 
        are already disposed to being aggressive, and it is not 
        restricted to the United States.\26\ While it is 
        perhaps axiomatic that children who become violent 
        because of television suffer harm, it is worth noting 
        that such children suffer harm in many ways. For 
        example, children exposed to excessive violence can 
        become anti-social, distant from others, and 
        unproductive members of society, especially if their 
        actions arouse fear in other people. They can suffer 
        from imprisonment or other forms of criminal punishment 
        if their violence leads to illegal behavior. Violent 
        behavior may not be the only harm caused by viewing 
        violent television. According to the APA, viewing 
        violence can cause fearfulness, desensitization, or an 
        increased appetite for more violence.
---------------------------------------------------------------------------
    \25\ Among these are studies conducted by the American Medical 
Association, the American Psychological Association, the National 
Institute of Mental Health, the Center for Disease Control, and 
numerous studies by individual researchers.
    \26\ Written Testimony of Dr. Leonard Eron, Professor of Psychology 
and Senior Research Scientist, Institute for Social Research, 
University of Michigan, before the Senate Committee on Commerce, 
Science, and Transportation, Communications Subcommittee, May 18, 1999.
---------------------------------------------------------------------------

HARM OF SOCIETY

          A related compelling governmental interest is the 
        need to protect society as a whole from the harmful 
        results of television-induced violent behavior. A child 
        who views excessive amounts of television violence is 
        not the only person who suffers harm. In his testimony 
        in 1999, Dr. Eron testified that violent programming 
        can adversely affect society because children who watch 
        excessive amounts of television when they are young are 
        more ``prone to be convicted for more serious crimes by 
        age 30; more aggressive while under the influence of 
        alcohol; and, harsher in the punishment they 
        administered to their own children.'' \27\
---------------------------------------------------------------------------
    \27\ Written Testimony of Dr. Eron before the Senate Committee on 
Commerce, Science, and Transportation Communications Subcommittee, July 
12, 1995, p. 2. Dr. Eron further warns that ``. . . like secondary 
smoke effects, . . . don't think that just because you have protected 
your child from the effects of television violence that your child is 
not affected. You and your child might be the victims of violence 
perpetrated by someone who as a youngster, did learn the motivation for 
and the techniques of violence from television.'' Ibid.
---------------------------------------------------------------------------

HELPING PARENTS SUPERVISE THEIR CHILDREN

          In addition to the governmental interests in 
        protecting children and society from harm, the courts 
        have also recognized a compelling governmental interest 
        in helping parents supervise what their children watch 
        on television. In Ginsberg, the Supreme Court upheld a 
        New York statute making it illegal to sell obscene 
        material to children. The Court noted that it was 
        proper for legislation to help parents exercise their 
        ``primary responsibility for [their] children's well-
        being with laws designed to aid [in the] discharge of 
        that responsibility.'' \28\
---------------------------------------------------------------------------
    \28\ Ginsberg v. New York, 390 U.S. 629, 639 (1968).
---------------------------------------------------------------------------

PRIVACY OF THE HOME

          The government's interest in protecting the privacy 
        of the home from intrusion by violent programming may 
        provide another compelling governmental interest. The 
        Supreme Court has recognized that ``in the privacy of 
        the home . . . the individual's right to be left alone 
        plainly outweighs the First Amendment rights of an 
        intruder.'' \29\ The right to privacy in one's home was 
        recently used to uphold legislation limiting persons 
        from making automated telephone calls to residences and 
        small businesses.\30\ Just as subscribers to telephones 
        do not give permission to telemarketers to place 
        automated telephone calls, the ownership of a 
        television does not give programmers permission to 
        broadcast material that is an intrusion into the 
        privacy of the home.
---------------------------------------------------------------------------
    \29\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
    \30\ Moser v. FCC, 46 F.3d 970 (9th Cir. 1995).
---------------------------------------------------------------------------

(B) THE LEAST RESTRICTIVE MEANS

          Opponents of the legislation argue that the safe 
        harbor approach to television violence is not the least 
        restrictive means of accomplishing the goals of 
        reducing children's exposure to television violence. 
        Some in the broadcast industry argue that the industry 
        should be trusted to regulate itself. Parents should 
        bear the primary responsibility for protecting their 
        children, according to some observers. Others say that 
        the warnings and advisories that many programmers now 
        add to certain shows are a lesser restrictive means of 
        protecting children. In addition, opponents of 
        legislation assert that the V-chip and the television 
        ratings system provide a less restrictive means of 
        protecting children.
          In United States v. Playboy, 329 U.S. 803 (2000), the 
        Supreme Court invalidated a provision in the 1996 Act 
        that required cable operators to either scramble 
        sexually explicit channels in full, or limit 
        programming on such channels to hours when children are 
        not likely to be watching. The Court held that the 
        provision was a content based restriction. The Court 
        further held that the requirements of the provision 
        were not the least restrictive means of achieving the 
        government's goal. The Court found that another 
        provision in the 1996 Act, that required cable 
        operators to fully block any channel upon request by a 
        subscriber provided a less restrictive alternative. The 
        Court added that even if this option was not widely 
        used by cable subscribers, the government bears the 
        burden of proving that the available alternative is not 
        effective. Title II of S. 2056 is crafted in part to 
        respond to Playboy. The FCC is only directed to 
        implement a safe harbor for violence after it 
        determines that the V-chip and ratings system are 
        ineffective alternative means of protecting children 
        from television violence. Prior to reaching such a 
        determination, the FCC is directed to prohibit violent 
        programming that is not electronically blockable, i.e., 
        that is not encoded specifically with a rating for 
        violent content.
          While the Committee cannot predict the outcome of the 
        FCC's analysis of the effectiveness of the V-chip and 
        the ratings system, the Committee does note that 
        parental supervision alone may not sufficiently protect 
        children from violence on television. For example, the 
        problem of children's exposure to violence on 
        television is especially acute for residents of inner 
        city neighborhoods. According to Gael Davis of the 
        National Council of Negro Women, ``Violence is the No. 
        1 cause of death in the African-American community. . . 
        . [I]n south central [Los Angeles], . . . [t]he 
        environment is permeated with violence. It is unsafe 
        for children to walk to and from school. We have 80 
        percent latch-key children, where there will be no 
        parent in the home during the afterschool hours when 
        they are viewing the television. The television has 
        truly become our electronic babysitter.'' \31\
---------------------------------------------------------------------------
    \31\ Testimony of Gael T. Davis, President, East Side Section, 
National Council of Negro Women, Hearing on S. 1383, the Children's 
Protection from Violent Programming Act of 1993, et al. before the 
Senate Committee on Commerce, Science, and Transportation, October 20, 
1993.
---------------------------------------------------------------------------
          Many children do not have the benefit of parents 
        willing and able to monitor the television programming 
        they watch. According to William Abbott of the 
        Foundation to Improve Television, ``millions of 
        children watch television unsupervised, one-fourth of 
        our children have but a single parent (the latch-key 
        kids).'' \32\
---------------------------------------------------------------------------
    \32\ Testimony of William Abbott, President, Foundation to Improve 
Television, before the Committee on Commerce, Science, and 
Transportation, Hearing on Television Violence, July 12, 1995.




           *         *         *         *         *
          Under the ``strict scrutiny'' test, a regulation that 
        limits freedom of speech based on the content must use 
        ``the least restrictive means to further the 
        articulated interest.'' \33\ As the following 
        discussion demonstrates, in the absence of an effective 
        V-chip and content based ratings system, the safe 
        harbor approach is the only approach that has a 
        significant chance of furthering the compelling 
        governmental interest in protecting American children 
        from the impact of television violence.
---------------------------------------------------------------------------
    \33\ Sable Communications of California., Inc v. FCC, 492 U.S. 115, 
126 (1989).
---------------------------------------------------------------------------

INDUSTRY SELF-REGULATION

          The television industry has been directed to improve 
        its programming by Congress for over 40 years. The 
        first congressional hearings on television violence 
        were held in 1952. Hearings were held in the Senate in 
        1954 and again in the 1960s, 1970s, 1980s, 1990s, and 
        again, three times since 2000. At many of these 
        hearings, representatives of the television industry 
        testified that they were committed to ensuring that 
        their programming was safe and appropriate for 
        children. In 1972, the Surgeon General called for 
        Congressional action, but this call was ignored after 
        the broadcast industry reached an agreement with the 
        FCC to restrict violent programs and programs 
        unsuitable for children during the family hour. There 
        is substantial evidence, however, that despite the 
        promises of the television industry, the amount of 
        violence on television is far greater than the amount 
        of violence in society and continues to increase. 
        According to one study, ``[s]ince 1955, television 
        characters have been murdered at a rate one thousand 
        times higher than real-world victims. Indeed, 
        television violence has far outstripped reality since 
        the 1950s.'' \34\ The incentives of the television 
        industry to air violent programming are best 
        illustrated by a quote from a memo giving directions to 
        the writers of the program ``Man Against Crime'' on CBS 
        in 1953: ``It has been found that we retain audience 
        interest best when our stories are concerned with 
        murder. Therefore, although other crimes may be 
        introduced, somebody must be murdered, preferably 
        early, with the threat of more violence to come.'' \35\
---------------------------------------------------------------------------
    \34\ S. Robert Lichter, Linda S. Lichter, and Stanley Rothman, 
Prime Time: How TV portrays American Culture, (Regnery Publishing, 
Inc., Washington, D.C., 1994), p. 275.
    \35\ Quoted in Eric Barnouw, The Image Empire, p. 23.
---------------------------------------------------------------------------
          In December 1992, the 4 broadcast networks released a 
        common code of standards that many criticized for being 
        weaker than the networks' own code of practices. In any 
        case, the code appears to have had little effect on the 
        amount of violence on television.
          Recent efforts by the broadcast and cable industries 
        to educate parents about the V-chip and channel 
        blocking can be viewed as another effort to avoid 
        regulation without affecting the amount of violent 
        programming to which children are exposed.

WARNING LABELS

          Some observers argue that a requirement to put 
        warnings or parental advisories before certain violent 
        programs would be a less restrictive means of 
        satisfying the Government's interest in protecting 
        children. The Committee has received no evidence, 
        however, that such warnings accomplish the purpose of 
        protecting children. Despite the industry's efforts to 
        air such advisories on their own initiative, the 
        National Parent-Teacher's Association and the 
        Foundation to Improve Television support a safe harbor 
        approach. Indeed, there is some reason to believe that 
        advisories may increase the amount of violence on 
        television, as some observers believe that programmers 
        may want a warning label to be placed on a program in 
        order to attract viewers.\36\
---------------------------------------------------------------------------
    \36\ For example, Ms. Lindsay Wagner, a television actress, 
testified in 1993 that film makers sometimes lobby to get an R rating. 
``We now have a couple of generations that have been reared on violence 
for fun and many flock to the films with warnings.'' Testimony of Ms. 
Lindsay Wagner, Hearing on S. 1383, the Children's Protection from 
Violent Programming Act of 1993, before the Senate Committee on 
Commerce, Science, and Transportation.
---------------------------------------------------------------------------
          Therefore, without parental supervision, such warning 
        labels may have the opposite effect of increasing the 
        number of children who watch violent programming. In 
        addition, warnings that appear once at the very 
        beginning of a program may not be seen by a viewer who 
        does not see the beginning of a program. Furthermore, 
        it is difficult to believe that such warnings would be 
        effective in the age of channel surfing.

PARENTAL RESPONSIBILITY AND CONTROL TECHNOLOGIES

          Some observers believe that parents should bear the 
        primary responsibility for protecting their children 
        from violent programming, and that a variety of 
        technologies are now available to assist parents in 
        controlling the programs that their children watch. For 
        several reasons, these approaches do not appear to be 
        effective.
          Even when parents are available and concerned about 
        the television programs that their children watch, they 
        may not be able to monitor their children's television 
        viewing habits at all times. According to one survey, 
        66 percent of homes have three or more television sets, 
        and 54 percent of children have a TV set in their own 
        bedrooms. Children often watch television unsupervised. 
        In fact, 55 percent of children usually watch 
        television alone or with friends, but not with their 
        families.
          The implementation of the safe harbor approach is 
        contingent upon the FCC finding that the content based 
        ratings system, when used in conjunction with the V-
        chip, provides an ineffective means of protecting 
        children from television violence. If the FCC makes 
        such a determination, it is unlikely that other 
        technology-based solutions will more appropriately 
        address the issue of children and television violence. 
        In addition, technology-based solutions may require 
        parents to spend money to purchase the new 
        technologies. Development of such technologies are also 
        uncertain. There are also questions about the ability 
        of parents to program the technologies effectively. In 
        many households, the children often are more 
        comfortable with the technologies than the parents.

(3) DEFINITION OF VIOLENT VIDEO PROGRAMMING

    Title II of S. 2056 adopts the same approach toward violent 
video programming as Congress has previously adopted for 
indecency. Section 1464 of title 18 prohibits the broadcast of 
indecency but does not contain a definition of the term. In 
1975, the FCC adopted a definition of indecency that the courts 
have upheld. While it may be difficult to craft a definition of 
violent video programming, that is not overbroad, that is not 
vague, and that is consistent with the research of harm caused 
to children, these are exactly the tasks that the FCC was 
created to perform. The FCC can hold its own hearings, seek 
comment from the industry and the public, and review the 
research in detail in order develop a definition that satisfies 
constitutional scrutiny.
    Some observers cite the case of Video Software Dealers 
Association v. Webster to support the position that legislation 
to restrict violent video material is unconstitutional.\37\ 
That case, however, concerned a statute that neither contained 
a definition of violent video material nor delegated the 
definition to an expert regulatory agency. Title II of S. 2056, 
by contrast, does not take effect until the FCC issues a 
definition of violent video programming. In Davis-Kidd Books v. 
McWherter, the court overturned a statute that contained a 
definition that was overly vague.\38\ While this case 
demonstrates the difficulty of defining violent video 
programming, it does not stand for the proposition that such 
term is incapable of being defined.
---------------------------------------------------------------------------
    \37\ 968 F.2d 684 (8th Cir. 1992).
    \38\ 866 S.W.2d 250 (1993).
---------------------------------------------------------------------------

(4) APPLICABILITY TO MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTION 
                    SERVICES

    Some question the constitutionality of restricting violence 
on multichannel video programming distribution (MVPD) services, 
including cable and direct broadcasting satellite (DBS), noting 
that Red Lion,\39\ Pacifica, and the ACT cases pertain only to 
broadcasting, not to cable or any other form of media. However, 
the strict scrutiny test applies to any content regulation, not 
just those imposed on broadcast stations. Court cases indicate 
that a restriction on violent video programming could, 
potentially, be imposed on any media if it satisfies the strict 
scrutiny test.\40\ The court's rationale for subjecting 
broadcasting to a more restrictive treatment includes, the 
scarcity of broadcast frequencies, the pervasive presence of 
broadcast, and accessibility of broadcast to children. In 
recognizing the special status of broadcasting, the Supreme 
Court, in the National Broadcasting Co. and Red Lion cases, 
concluded that due to spectrum scarcity, broadcast frequencies 
are not available to all who wish to use them. The Supreme 
Court in ACT IV, addressed the pervasive presence of broadcast 
and its accessibility to children. The Court stated, ``the 
broadcast media have established a uniquely pervasive presence 
in the lives of all Americans. Patently offensive, indecent 
material presented over the airwaves confronts the citizen, not 
only in public, but also in the privacy of the home, . . . 
Second, broadcasting is uniquely accessible to children . . . 
The ease with which children may obtain access to broadcast 
material, . . . amply justifies special treatment of indecent 
broadcasting.\41\ The ACT IV court further noted that 
``broadcast audiences have no choice but to `subscribe' to the 
entire output of traditional broadcasters.'' \42\
---------------------------------------------------------------------------
    \39\ Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969).
    \40\ The court in ACT IV states, ``[W]e apply strict scrutiny to 
regulations of this kind [concerning indecency] regardless of the 
medium affected by them. . . .'' ACT IV, at 660.
    \41\ Ibid., 659-660.
    \42\ Ibid., 660.
---------------------------------------------------------------------------
    Just as with broadcast television, MVPD services have grown 
to have a uniquely pervasive presence in the lives of all 
Americans and are uniquely accessible to children. Over 85 
percent of households now receive some form of MVPD service, 
with 90 percent of such households choosing expanded basic 
offerings. From the perspective of the viewer, and especially 
children, there is little if any distinction between broadcast 
programs and expanded basic programs that are carried on a MVPD 
system.
    Two recent Supreme Court cases indicate that it is 
permissible to regulate pay-TV platforms. The Supreme Court, in 
Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC,\43\ addressed the constitutionality of section 10 of the 
Cable Television Consumer Protection and Competition Act of 
1992. Although the Court struck certain provisions of section 
10, it held that section 10(a), which permits cable operators 
to decide whether or not to broadcast indecent programs on 
leased access channels, is consistent with the First Amendment.
---------------------------------------------------------------------------
    \43\ Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC, 518 U.S. 727 (1996).
---------------------------------------------------------------------------
    In Playboy, the Supreme Court addressed the 
constitutionality of section 505 of the 1996 Act. While the 
court struck down the provisions in question, it did so on the 
grounds that it was not the least restrictive alternative, not 
because Congress cannot regulate content on cable.
    In fact, the District Court opinion in Playboy stated that, 
``. . . cable television is a means of communication which is 
pervasive and . . . [t]he Supreme Court has recognized that 
cable television is as accessible to children as over-the-air 
broadcasting, if not more so.'' \44\ Moreover, the Supreme 
Court in its consideration of freedom of speech under the First 
Amendment has recognized the need to protect children from 
sexually explicit material, particularly in the context of a 
pervasive medium.\45\
---------------------------------------------------------------------------
    \44\ Playboy Entertainment Group v. United States, 945 F. Supp. 722 
(1996).
    \45\ Pacifica, 438 U.S. at 750-51.
---------------------------------------------------------------------------
    Title II of S. 2056 is not intended to apply to premium or 
pay-per-view channels in recognition of the fact that parents 
have the choice to subscribe to these channels on an individual 
basis. This distinction between premium channels and pay-per-
view programs, on the one hand, and basic or expanded basic 
packages of cable or DBS programs, on the other, demonstrates 
the Committee's attempt to balance the rights of children and 
the legitimate rights of parents to watch the programs that 
they want to watch. In this way, the legislation avoids 
unnecessarily interfering with parents' First Amendment rights 
in order to meet the least restrictive means test.

                          Legislative History

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

                            Estimated Costs

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 2, 2004.
Hon. John McCain,
Chairman, Committee on Commerce, Science and Transportation, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2056, the Broadcast 
Decency Enforcement Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Melissa E. 
Zimmerman (for federal costs), Sarah Puro (for the impact on 
state and local governments), and Jean Talarico (for the impact 
on the private sector).
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 2056--Broadcast Decency Enforcement Act of 2004

    Summary: S. 2056 would increase the maximum civil penalty 
for broadcasting obscene, indecent, or profane material. (Such 
penalties are recorded in the federal budget as revenues.) The 
bill also would change current law and existing regulations 
concerning violent programming and ownership of multiple media 
outlets. Under the bill, CBO estimates that revenues resulting 
from those penalties would increase by less than $250,000 in 
2004 and by about $2 million over the 2005-2009 period. CBO 
estimates that implementing S. 2056 would increase spending 
subject to appropriation by less than $500,000 in 2004 and 
about $1 million over the 2005-2009 period. The bill would not 
affect direct spending.
    S. 2056 contains an intergovernmental mandate as defined by 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
the resulting costs would not be significant and would not 
exceed the threshold established in UMRA ($60 million in 2004, 
adjusted annually for inflation).
    S. 2056 would impose private-sector mandates as defined in 
UMRA on the owners of television networks, broadcast stations, 
cable operators, and providers of satellite broadcast service. 
CBO cannot determine whether the total cost to the private 
sector would exceed the threshold for private-sector mandates 
established by UMRA ($120 million in 2004, adjusted annually 
for inflation). We do not have any basis for predicting what 
regulations the FCC would issue regarding violent video 
programming, the distributors' response to those regulations, 
or the viewers' and advertisers' response to those changes.
    Estimated cost to the Federal Government: S. 2056 would 
increase the monetary penalties assessed by the Federal 
Communications Commission (FCC) for broadcasting obscene, 
indecent, or profane material. For broadcast licensees, the 
maximum penalty for each violation would increase from about 
$25,000 to $275,000 for the first violation, $375,000 for the 
second violation, and $500,000 for the third violation. If the 
FCC determines that a violation is aggravating in nature, those 
fines would double. The maximum fine would be $3 million for 
violations occurring within a 24-hour period. The maximum 
penalty for individuals would increase from about $10,000 to 
$500,000. According to the FCC, prior assessments for each 
violation have been around $50,000 per year recently--however, 
annual collections have varied widely. For example, the FCC did 
not collect any penalties for indecency violations in 2003 but 
has collected $800,000 during the first five months of fiscal 
year 2004.
    CBO estimates that under S. 2056, collections of penalties 
for broadcasting obscene, indecent, or profane material would 
increase by less than $250,000 in 2004 and on average less than 
$500,000 per year over the 2005-2009 period. The increase in 
collections could be much higher or lower considering that the 
number of penalties varies widely from year to year.
    S. 2056 also would void regulations issued by the FCC on 
June 2, 2003, pertaining to the ownership of television 
stations, radio stations, and newspapers. That provision would 
reinstate the regulations concerning ownership of multiple 
media outlets that were in effect before that date. Finally, S. 
2056 would require the FCC to issue regulations regarding a ban 
on violent programming during times when children are likely to 
be in the audience and conduct an annual report on the 
effectiveness of the current ratings system and the ``V-Chip'' 
technology that electronically blocks violent programming. 
Based on information provided by the FCC, CBO estimates that 
those tasks would increase spending subject to appropriation by 
less than $500,000 in 2004 and by about $1 million over the 
2005-2009 period.
    Estimated impact on state, local, and tribal governments: 
Section 715 contains an intergovernmental mandate as defined by 
UMRA because it would prohibit the transmission to the public 
of certain violent programs unless those programs can be 
blocked by electronic means during hours when children are 
likely to comprise a substantial portion of the audience. To 
comply with this mandate, distributors, including public 
broadcasters, would be required either to reschedule or to not 
transmit certain violent programs that do not include a code 
allowing them to be blocked electronically. According to the 
Corporation for Public Broadcasting, all Public Broadcasting 
Station programs are so encoded; therefore, CBO estimates that 
the associated costs of the mandate would be minimal and would 
not exceed the threshold established in UMRA ($60 million in 
2004, adjusted annually for inflation).
    Although the provisions in title I of the bill do not 
constitute a mandate as defined by UMRA, to the extent that 
public broadcasters would be affected by the increased 
penalties for indecency, they would incur additional costs. 
However, CBO estimates that those additional costs, if any, 
would be minimal because complaints regarding indecency against 
publicly owned broadcasting outlets are rare.
    Estimated impact on the private sector: S. 2056 would 
impose private-sector mandates as defined in UMRA on the owners 
of television networks, broadcast stations, cable operators, 
and providers of satellite broadcast service. CBO cannot 
determine whether the total cost to the private sector would 
exceed the threshold for private-sector mandates established by 
UMRA ($120 million in 2004, adjusted annually for inflation). 
We do not have any basis for predicting what regulations the 
FCC would issue regarding violent video programming, the 
distributors' response to those regulations, or the viewers' 
and advertisers' response to those changes.

Broadcast Media Ownership Rules

    Under the Consolidated Appropriations Act of 2004 enacted 
January 23, 2004, a broadcast network can own and operate local 
broadcast stations that reach up to 39 percent of households 
nationwide. S. 2056 would reinstate the FCC's ownership rules 
that were in effect on June 1, 2003. This reinstatement would 
require owners of commercial television broadcast stations that 
have a national audience reach exceeding 35 percent to divest 
itself of such licenses as may be necessary to come into 
compliance with that limitation.
    According to the FCC, two companies would exceed the cap--
Viacom Inc. (the owner of CBS) and News Corps. (the owner of 
Fox). Based on information from government and industry 
sources, CBO estimates that Viacom Inc. and News Corps. would 
likely be able to sell their stations at a fair market value. 
Therefore, the cost of this mandate would be only the 
transaction costs involved in the sale.

Children's Protection From Violent Programing

    The bill would impose a private-sector mandate by 
prohibiting the distribution to the public of certain violent 
programs unless they can be blocked by electronic means during 
hours when children are reasonably likely to comprise a 
substantial portion of the audience. The mandate would affect 
television networks, broadcast stations, cable operators, and 
providers of satellite broadcast services. Certain satellite 
and cable premium and pay-per-view programs would be exempt, 
and the FCC could exempt other programs, such as news and 
sports.
    To comply with the mandate, the distributors would be 
required to either code programs or reschedule or not transmit 
certain violent programs that do not include a code, allowing 
them to be blocked electronically. Information from the FCC and 
industry representatives indicates that most programs currently 
include coding that allows them to be blocked electronically. 
Thus, the mandate would effectively require changes to only a 
small number of programs.
    The cost to encode a program is not high, therefore, the 
greatest potential cost to the private sector would be any loss 
of new revenues associated with changes in the scheduling or 
nontransmission of those violent programs that are not encoded.
    The bill also would require that the FCC assess the 
effectiveness of electronic blocking and rating system on the 
protection of children from violent programming. If the FCC 
determines that those measures are not effective, the FCC would 
be required to complete a rulemaking that would prohibit the 
distribution of violent video programming during the hours when 
children are reasonably likely to comprise a substantial 
portion of the audience. Such a ruling by the FCC would impose 
a private-sector mandate on the distributors of violent 
programs.
    CBO cannot estimate the cost of those mandates. We do not 
have any basis for predicting the FCC's decision regarding the 
effectiveness of electronic blocking and ratings on the 
protection of children from violent programing, the details of 
the regulations the FCC would issue, the distributors' response 
to those regulations, or the viewers' and advertisers' response 
to those changes.
    Previous CBO estimate: On March 8, 2004, CBO transmitted a 
cost estimate for H.R. 3717, the Broadcast Decency Enforcement 
Act of 2004, as ordered reported by the House Committee on 
Energy and Commerce on March 3, 2004. Both bills would impose a 
similar increase on monetary penalties assessed by the FCC for 
broadcasting obscene, indecent, or profane material, and 
therefore, would have the same effect on revenues.
    S. 2056 differs from H.R. 3717 because the Senate bill 
contains a provision that would prohibit the transmission to 
the public of certain programs unless blocked by electronic 
coding. That provision is a mandate as defined by UMRA, while 
H.R. 3717 contains no new mandates.
    Estimate prepared by: Federal Costs: Melissa E. Zimmerman; 
Impact on State, Local, and Tribal Governments: Sarah Puro; and 
Impact on the Private Sector: Jean Talarico.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:
  S. 2056 would increase the forfeiture amount for violators of 
18 U.S.C. 1464 as well as make other changes to the Act. The 
number of persons covered by the Act would not expand as 
broadcasters, multichannel video programming distributors, and 
certain non-broadcast licensees are already covered by the Act. 
The bill, however, would expand the scope of regulated conduct 
by these persons. Specifically, broadcasters and multichannel 
video program distributors could face new prohibitions on 
distributing violent video programming, and would be subject to 
fines under section 502 of the Act for distribution of violent 
video programming not blockable by electronic means.

                            ECONOMIC IMPACT

  Although the legislation may have an adverse economic impact 
on those who violate 18 U.S.C. 1464, this impact will assist 
the FCC in better enforcing the prohibition on broadcasting 
indecent, profane, or obscene material. Moreover, the 
legislation would impact television networks, broadcast 
stations, and cable programmers insofar as these entities would 
now be required to determine when to air certain programming if 
they do not currently offer content-specific ratings for 
violent programming. However, if networks and broadcasters pass 
on content-specific ratings to cable and satellite providers, 
the law will have no adverse economic impact. The networks and 
broadcast stations already have standards and practices 
departments that review all programs for their content. The 
legislation would require only these reviewers to add an 
analysis of the violent content to the analyses that they 
currently conduct.

                                PRIVACY

  S. 2056 is not expected to have an adverse effect on the 
personal privacy of any individuals that will be impacted by 
this legislation.

                               PAPERWORK

  S. 2056 would have a minimal impact on current paperwork 
levels.

                      Section-by-Section Analysis


                       TITLE I--BROADCAST DECENCY


Section 101. Short Title.

  This section would provide that the legislation may be cited 
as the ``Broadcast Decency Enforcement Act of 2004.''

Section 102. Increase in Penalties for Obscene, Indecent, and Profane 
        Broadcasts.

  This section would increase the cap on fines for violations 
of 18 U.S.C. 1464. The maximum fines would increase from 
$27,500 to $275,000 for the first violation, $375,000 for the 
second violation, and $500,000 for the third and any subsequent 
violation. A ``violation'' shall be any individual utterance or 
showing of indecent material. For example, within one radio 
program, a broadcast licensee may be fined $500,000 for the 
third time an indecent word is uttered during that program. 
However, this section establishes a cap of $3 million dollars 
for the amount that may be assessed against a licensee or 
permittee in any given 24 hours. This section does not require 
the FCC to assess the maximum for any violation. The FCC would 
retain the latitude to determine an appropriate fine up to the 
maximum, except that it would be required to consider the 
violator's ability to pay when assessing a fine and the size of 
the markets in which the station is located, in addition to 
those factors set forth in section 503(b)(2)(D).
  This section also mandates commencement of a license 
revocation proceeding by the FCC against any licensee that 
repeatedly violates 18 U.S.C. 1464 during the term of its 
license. If 3 times during the term of a license, a licensee 
pays a fine for the broadcast of obscene, indecent, or profane 
material or a court of competent jurisdiction orders the 
licensee to pay such a fine, then the FCC shall commence a 
proceeding under section 312 of the Act to revoke that 
station's license. This section does not prevent the FCC from 
commencing a license revocation proceeding against any licensee 
who violates 18 U.S.C. 1464 at any time even after a single 
indecency violation, and even if the licensee has never paid a 
fine for such a violation.

Section 103. Additional Factors in Indecency Penalties; Exception.

  This section lists additional factors the FCC should take 
into consideration when assessing the degree of culpability of 
the violator. The factors that may be considered by the FCC to 
either enhance or mitigate penalties include: (1) whether the 
material was live or recorded, scripted or unscripted; (2) 
whether the licensee had a reasonable opportunity to review the 
programming or had reason to believe it may contain obscene, 
indecent, or profane material; (3) whether the violator used a 
time delay blocking mechanism in originating live or unscripted 
programming; (4) the size of the viewing or listening audience; 
(5) the size of the market; and (6) whether the material was 
aired during a children's television program, or television 
programs rated for general audience viewing, or aired on radio 
when the audience is likely to include children.
  This section also allows the FCC to double fines, and doubles 
the total cap on fines, if the Commission determines certain 
aggravating factors to be present, including: (1) the material 
was scripted or recorded; (2) the violator had a reasonable 
opportunity to review the script or recording, thereby 
demonstrating that the violator had knowledge that indecent, 
obscene, or profane material would be aired, or otherwise had a 
reasonable basis to believe that live or unscripted programming 
would contain indecent material; (3) the violator failed to 
block live or unscripted programming; (4) the size of the 
audience was substantially larger than usual, such as the Super 
Bowl, the Academy Awards or similar programs; and (5) the 
violation occurs during a children's television program.

Section 104. Indecency Penalties for Non-Licensees.

  This section would streamline the existing process for fining 
non-licensees for violations of 18 U.S.C. 1464. This section 
would permit the FCC to fine persons who utter obscene, 
indecent, or profane material willfully or intentionally and 
who should have known that such material would be broadcast 
without any prior citation. It would also raise the limit on 
such a fine to $500,000 for each violation. A ``violation'' may 
be an individual utterance of indecent material.
  The Committee does not believe this section should be used to 
fine persons who had no reason to believe such an utterance or 
showing would be broadcast, or had reason to believe that it 
would be broadcast during a time when such utterances are 
permitted (e.g. 10 p.m. to 6 a.m.). Willful and intentional are 
similar terms that denote an act done knowingly, purposely and 
intentionally.\47\ If, for example, an athlete or coach in the 
heat of a sporting event (such as a baseball player being hit 
by a pitch) spontaneously or reflexively yells out an obscene, 
indecent, or profane utterance caught by a field microphone, 
the Committee believes that person would not be subject to a 
fine since his actions were not done purposely and 
intentionally. The Committee also expects the FCC to afford 
individuals the same protections as licensees when determining 
the degree of culpability of the non-licensee.
---------------------------------------------------------------------------
    \47\ Black's Law Dictionary 1434 (5th ed., 1979) (defining 
``willful'' as ``intentional'').
---------------------------------------------------------------------------

Section 105. Voluntary Industry Code of Conduct Governing Family 
        Television Viewing.

  The Committee encourages broadcast licensees and networks to 
develop ``family viewing'' programs for the first hour of prime 
time each night and in the immediately preceding hour when the 
audience may likely contain children. It is the Committee's 
intention that such programming aired during these two hours 
would be suitable for families to view together.
  In April 1975, the NAB developed a Code of Conduct for 
Television, which included a family viewing policy. The policy 
provided that ``entertainment programming inappropriate for 
viewing by a general family audience should not be broadcast 
during the first hour of network entertainment programming in 
prime time and in the immediately preceding hour.'' In 1976, 
the family viewing policy was challenged, but ultimately the 
appeals court, in a jurisdictional ruling, found that the 
Commission and not the district court was the right forum to 
decide the case in the first instance.\48\ Although the 
decision of the Court of Appeals was jurisdictional, that court 
suggested considerable doubt about the district court's 
judgment,``It simply is not true that the First Amendment bars 
all limitations of the power of the individual licensee to 
determine what he will transmit to the listening and viewing 
public.'' Additionally, this section would prevent the 
Department of Justice from precluding the broadcasters and the 
networks from developing a ``family viewing policy'' due to 
antitrust concerns.\49\
---------------------------------------------------------------------------
    \48\ United States v. NAB, 536 F. Supp. 149 (D.D.C. 1982).
    \49\ Writers Guild of America, West, Inc. v. FCC, 423 F. Supp. 1064 
(D. Ca. 1976); vacated and remanded to the FCC, 609 F.2d 355 (9th Cir. 
1979) (holding that [t]his is a considerably more narrow and precise 
issue than is the district court's bedrock principle and with respect 
to which the FCC's expertise and procedures could provide enormous 
assistance to the judiciary'').
---------------------------------------------------------------------------

Section 106. Deadlines for Action on Complaints.

  This section sets firm deadlines for the FCC to respond to 
complaints regarding obscene, indecent, or profane material. It 
gives the FCC 270 days (approximately 9 months) to respond to 
any complaint received. The FCC would be required to act by 
issuing the notices to the licensee or permittee required by 
section 503, or by writing to the licensee or permittee and the 
complainant to inform the parties that the Commission has not 
found a violation of 18 U.S.C. 1464. If the Commission 
commences an action against a licensee as a result of a 
complaint, this section would require it to complete the action 
within an additional 270 days. Thus, this section will require 
all action related to a particular indecency violation to be 
completed within 18 months of the violation.

Section 107. Required Contents of Annual Reports to the Commission.

  This section would require the FCC to submit an annual report 
to Congress detailing the agency's enforcement activities. The 
section includes the details that must be included in the 
report.

Section 108. Media Ownership and Indecency Broadcast.

  This section would require the GAO to conduct a study to 
examine whether a relationship exists between the increased 
consolidation of owners of media companies and the increased 
rise in indecency complaints to the FCC. The study would be 
submitted to the Senate Committee on Commerce, Science, and 
Transportation and the House of Representatives Committee on 
Energy and Commerce within one year after the enactment of this 
legislation.
  Additionally, this section would suspend the FCC's media 
ownership rules adopted on June 2, 2003, from taking effect by 
declaring such rules ``invalid and without legal effect'' until 
the completion and submission of the report.\50\ During this 
time, the FCC's media ownership rules in place prior to June 2, 
2003, would be in effect.\51\
---------------------------------------------------------------------------
    \50\ 2002 Biennial Regulatory Review ``Review of the Commission's 
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 
202 of the Telecommunications Act of 1996'', Report and Order, 18 FCC 
Rcd 13620 (rel. Jul. 2, 2003).
    \51\ See 47 CFR 73.3555; See also Section 202 of the 
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.
---------------------------------------------------------------------------

Section 109. Implementation.

  This section requires the FCC to implement the sections of 
this legislation within 180 days after the date of enactment. 
Additionally, this section would ensure that broadcasts aired 
prior to the date of enactment would not be subject to this 
legislation's increase fines and other provisions. Lastly, this 
section contains a separability clause that holds that if any 
provision of this bill or any provision of an amendment made to 
this bill, or the application thereof to particular persons or 
circumstances, is found to be unconstitutional, the remainder 
of this bill, or that amendment, or the application thereof to 
other persons or circumstances shall not be affected.

        TITLE II--CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING


Sec. 201. Short Title.

  This section establishes the short title of this title of the 
bill, ``Children's Protection from Violent Programming''.

Sec. 202. Findings.

  This section expresses the findings made by the Committee in 
support of the legislation.

Sec. 203. Assessment of Effectiveness of Current Ratings System for 
        Violence and Effectiveness of V-Chip in Blocking Violent 
        Programming.

  This section directs the Commission to assess the 
effectiveness of measures to require television broadcasters 
and multichannel video programming distributors to rate and 
encode programming that could be blocked by parents using the 
V-Chip undertaken under section 715 of the Communications Act 
of 1934, and subsections (w) and (x) of section 303 of that 
Act. It also requires the FCC to report its findings to the 
Senate Committee on Commerce, Science, and Transportation and 
the House of Representatives Committee on Energy and Commerce 
within 12 months of enactment, and annually thereafter.
  If the FCC finds as a result of its ongoing assessment 
responsibilities described above, that the measures referred to 
are ineffective, then the Commission shall complete a 
rulemaking within 270 days after the date on which the 
Commission makes such a finding to prohibit the distribution of 
violent video programming during the hours when children are 
reasonably likely to comprise a substantial portion of the 
audience.

Sec. 204. Unlawful Distribution of Violent Video Programming that Is 
        Not Specifically Rated for Violence and Therefore Is Not 
        Blockable.

  This section creates a new section 715 of the Act entitled: 
``Unlawful Distribution of Violent Video Programming not 
Specifically Blockable by Electronic Means'', which makes it 
unlawful for any person to distribute to the public any violent 
video programming not blockable by electronic means 
specifically on the basis of its violent content during hours 
when children are reasonably likely to comprise a substantial 
portion of the audience. The FCC is directed to conduct a 
rulemaking and promulgate regulations to implement the 
provisions of this section within nine months of enactment. In 
that proceeding, the Commission may exempt programming that 
does not conflict with the objective of protecting children 
from the negative influences of violent video programming, as 
that objective is reflected in the findings of section 551(a) 
of the 1996 Act. Such exempt programming could include news 
programs and sporting events.
  Additionally, the FCC is directed to exempt premium and pay-
per-view cable and direct-to-home satellite programming and to 
define the term ``hours when children are reasonably likely to 
comprise a substantial portion of the audience'' and the term 
``violent video programming''.
  The Commission is directed to impose a forfeiture penalty of 
not more than the limits established under section 503(b) for 
indecency violations to any person who violates this section or 
related regulation. Each day on which such violation occurs is 
a separate violation. If a person repeatedly violates this 
section or related regulation, the FCC shall after notice and 
opportunity for hearing, revoke any license issued under this 
legislation. Moreover, the Commission must consider compliance 
with this section and related regulations when it reviews an 
application for renewal of a broadcast license.

Sec. 205. Federal Trade Commission Study of Marketing Strategy 
        Improvements.

  This section requires the FTC to study the marketing of 
violent content by the motion picture, music recording, and 
computer and video game industries to children, including the 
marketing practices improvements developed and implemented by 
those industries. The FTC is required to report annually on its 
findings and recommendations, to the Senate Committee on 
Commerce, Science, and Transportation, and the House of 
Representatives Committee on Energy and Commerce.

Sec. 206. Separability.

  Under this section, if any provision of this bill or any 
provision of an amendment made by this Act, or the application 
thereof to particular persons or circumstances, is found to be 
unconstitutional, the remainder of this bill, or that 
amendment, or the application thereof to other persons or 
circumstances shall not be affected.

Sec. 207. Effective Date.

  The prohibition contained in section 715 of the 
Communications Act of 1934 (as added by section 2 of this Act) 
and the regulations promulgated thereunder shall take effect 1 
year after the regulations are adopted by the Commission.

                      ROLLCALL VOTES IN COMMITTEE

  In accordance with paragraph 7(c) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following description of the record votes during its 
consideration of S. 2056:

  Senator Stevens offered an amendment to require the FCC to 
initiate mandatory license revocation proceedings against a 
licensee who has broadcast obscene, indecent, or profane 
language or images on three or more occasions. By a rollcall 
vote of 11 yeas and 10 nays as follows, the amendment was 
adopted:
        YEAS--11                      NAYS--10
Mr. Stevens                         Ms. Snowe
Mr. Burns                           Mr. Brownback
Mr. Lott\1\                         Mr. Fitzgerald
Mrs. Hutchison                      Mr. Ensign
Mr. Smith                           Mr. Allen
Mr. Sununu                          Mr. Dorgan
Mr. Hollings                        Mr. Wyden
Mr. Inouye                          Mrs. Boxer
Mr. Breaux                          Ms. Cantwell
Mr. Nelson                          Mr. McCain
Mr. Lautenberg\1\

    \1\By proxy

  Senator Breaux offered an amendment to apply the penalties 
for obscene, etc., broadcasting to multichannel video 
programming distributors (other than with respect to pay-per-
view, etc., programming) until the FCC determines that 85 
percent of the households with children are using the V-chip or 
similar technology to block offensive programming or have 
affirmatively opted out of using it. By rollcall vote of 11 
yeas and 12 nays as follows, the amendment was defeated:
        YEAS--11                      NAYS--12
Mr. Lott                            Mr. Stevens
Mr. Ensign                          Mr. Burns
Mr. Hollings                        Mrs. Hutchison
Mr. Rockefeller\1\                  Ms. Snowe\1\
Mr. Kerry\1\                        Mr. Brownback
Mr. Breaux                          Mr. Smith
Mr. Dorgan                          Mr. Fitzgerald
Mr. Wyden                           Mr. Allen
Mrs. Boxer                          Mr. Sununu
Mr. Nelson                          Mr. Inouye
Mr. McCain                          Ms. Cantwell
                                    Mr. Lautenberg\1\

    \1\By proxy

  Senator Dorgan, for himself, Senator Lott, Senator Snowe, and 
Senator Cantwell offered an amendment to increase the penalties 
for violations by television and radio broadcasters of the 
prohibitions against transmission of obscene, indecent, and 
profane language. By a rollcall vote of 13 yeas and 10 nays as 
follows, the amendment was adopted:
        YEAS--13                      NAYS--10
Mr. Lott                            Mr. Stevens
Mrs. Hutchison\1\                   Mr. Burns
Ms. Snowe\1\                        Mr. Brownback
Mr. Hollings                        Mr. Smith
Mr. Inouye                          Mr. Fitzgerald
Mr. Rockefeller\1\                  Mr. Ensign
Mr. Kerry\1\                        Mr. Allen
Mr. Dorgan                          Mr. Sununu\1\
Mr. Wyden                           Mr. Breaux
Mrs. Boxer                          Mr. McCain
Mr. Nelson
Ms. Cantwell
Mr. Lautenberg\1\

    \1\By proxy

  By a rollcall vote of 23 yeas and 0 nays as follows, the bill 
was ordered reported with amendments:
        YEAS--23                      NAYS--0
Mr. Stevens
Mr. Burns
Mr. Lott
Mrs. Hutchison\1\
Ms. Snowe\1\
Mr. Brownback
Mr. Smith
Mr. Fitzgerald
Mr. Ensign
Mr. Allen
Mr. Sununu\1\
Mr. Hollings
Mr. Inouye
Mr. Rockefeller\1\
Mr. Kerry\1\
Mr. Breaux
Mr. Dorgan
Mr. Wyden
Mrs. Boxer
Mr. Nelson
Ms. Cantwell\1\
Mr. Lautenberg\1\
Mr. McCain

    \1\By proxy

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                       COMMUNICATIONS ACT OF 1934

                Title III--Provisions Relating to Radio

                       PART I--GENERAL PROVISIONS

SEC. 312. [47 U.S.C. 312] ADMINISTRATIVE SANCTIONS.

  (a) The Commission may revoke any station license or 
construction permit--
          (1) for false statements knowingly made either in the 
        application or in any statement of fact which may be 
        required pursuant to section 308;
          (2) because of conditions coming to the attention of 
        the Commission which would warrant it in refusing to 
        grant a license or permit on an original application;
          (3) for willful or repeated failure to operate 
        substantially as set forth in the license;
          (4) for willful or repeated violation of, or willful 
        or repeated failure to observe any provision of this 
        Act or any rule or regulation of the Commission 
        authorized by this Act or by a treaty ratified by the 
        United States;
          (5) for violation of or failure to observe any final 
        cease and desist order issued by the Commission under 
        this section;
          (6) for violation of section 1304, 1343, or 1464 of 
        title 18 of the United States Code; or
          (7) for willful or repeated failure to allow 
        reasonable access to or to permit purchase of 
        reasonable amounts of time for the use of a 
        broadcasting station, other than a non-commercial 
        educational broadcast station, by a legally qualified 
        candidate for Federal elective office on behalf of his 
        candidacy.
  (b) Where any person (1) has failed to operate substantially 
as set forth in a license, (2) has violated or failed to 
observe any of the provisions of this Act, or section 1304, 
1343, or 1464 of title 18 of the United States Code, or (3) has 
violated or failed to observe any rule or regulation of the 
Commission authorized by this Act or by a treaty ratified by 
the United States, the Commission may order such person to 
cease and desist from such action.
  (c) Before revoking a license or permit pursuant to 
subsection (a), or issuing a cease and desist order pursuant to 
subsection (b), the Commission shall serve upon the licensee, 
permittee, or person involved an order to show cause why an 
order of revocation or a cease and desist order should not be 
issued. Any such order to show cause shall contain a statement 
of the matters with respect to which the Commission is 
inquiring and shall call upon said licensee, permittee, or 
person to appear before the Commission at a time and place 
stated in the order, but in no event less than thirty days 
after the receipt of such order, and give evidence upon the 
matter specified therein; except that where safety of life or 
property is involved, the Commission may provide in the order 
for a shorter period. If after hearing, or a waiver thereof, 
the Commission determines that an order of revocation or a 
cease and desist order should issue, it shall issue such order, 
which shall include a statement of the findings of the 
Commission and the grounds and reasons therefor and specify the 
effective date of the order, and shall cause the same to be 
served on said licensee, permittee, or person.
  (d) In any case where a hearing is conducted pursuant to the 
provisions of this section, both the burden of proceeding with 
the introduction of evidence and the burden of proof shall be 
upon the Commission.
  (e) The provisions of section 9(b) [5 U.S.C. 558(c)(1) and 
(2)] of the Administrative Procedure Act which apply with 
respect to the institution of any proceeding for the revocation 
of a license or permit shall apply also with respect to the 
institution, under this section, of any proceeding for the 
issuance of a cease and desist order.
  (f) For purposes of this section:
          (1) The term ``willful'', when used with reference to 
        the commission or omission of any act, means the 
        conscious and deliberate commission or omission of such 
        act, irrespective of any intent to violate any 
        provision of this Act or any rule or regulation of the 
        Commission authorized by this Act or by a treaty 
        ratified by the United States.
          (2) The term ``repeated'', when used with reference 
        to the commission or omission of any act, means the 
        commission or omission of such act more than once or, 
        if such commission or omission is continuous, for more 
        than one day.
  (g) If a broadcasting station fails to transmit broadcast 
signals for any consecutive 12-month period, then the station 
license granted for the operation of that broadcast station 
expires at the end of that period, notwithstanding any 
provision, term, or condition of the license to the contrary.
  (h) License Revocation for Multiple Violations of Indecency 
Prohibitions.--If, in each of 3 or more proceedings during the 
term of a broadcast license for a broadcast station, a licensee 
is ordered to pay forfeitures for the broadcast of obscene, 
indecent, or profane material by either--
          (1) the Commission and such forfeitures have been 
        paid, or
          (2) a court of competent jurisdiction and such orders 
        have become final,
then the Commission shall commence a proceeding under 
subsection (a) with respect to that broadcast station to revoke 
the station license or construction permit of that licensee or 
permittee.

           *       *       *       *       *       *       *


                 Title V--Penal Provisions--Forfeitures

SEC. 503. [47 U.S.C. 503] FORFEITURES IN CASES OF REBATES AND OFFSETS.

  (a) Any person who shall deliver messages for interstate or 
foreign transmission to any carrier, or for whom as sender or 
receiver, any such carrier shall transmit any interstate or 
foreign wire or radio communication, who shall knowingly by 
employee, agent, officer, or otherwise, directly or indirectly, 
by or through any means or device whatsoever, receive or accept 
from such common carrier any sum of money or any other valuable 
consideration as a rebate or offset against the regular charges 
for transmission of such messages as fixed by the schedules of 
charges provided for in this Act, shall in addition to any 
other penalty provided by this Act forfeit to the United States 
a sum of money three times the amount of money so received or 
accepted and three times the value of any other consideration 
so received or accepted, to be ascertained by the trial court; 
and in the trial of said action all such rebates or other 
considerations so received or accepted for a period of six 
years prior to the commencement of the action, may be included 
therein, and the amount recovered shall be three times the 
total amount of money, or three times the total value of such 
consideration, so received or accepted, or both, as the case 
may be.
  (b)(1) Any person who is determined by the Commission, in 
accordance with paragraph (3) or (4) of this subsection, to 
have--
          (A) willfully or repeatedly failed to comply 
        substantially with the terms and conditions of any 
        license, permit, certificate, or other instrument or 
        authorization issued by the Commission;
          (B) willfully or repeatedly failed to comply with any 
        of the provisions of this Act or of any rule, 
        regulation, or order issued by the Commission under 
        this Act or under any treaty, convention, or other 
        agreement to which the United States is a party and 
        which is binding upon the United States;
          (C) violated any provision of section 317(c) or 
        508(a) of this Act; or
          (D) violated any provision of section 1304, 1343, or 
        1464 of title 18, United States Code;
shall be liable to the United States for a forfeiture penalty. 
A forfeiture penalty under this subsection shall be in addition 
to any other penalty provided for by this Act; except that this 
subsection shall not apply to any conduct which is subject to 
forfeiture under title II, part II or III of title III, or 
section 506 of this Act.
  (2)(A) If the violator is (i) a broadcast station licensee or 
permittee, (ii) a cable television operator, or (iii) an 
applicant for any broadcast or cable television operator 
license, permit, certificate, or other instrument or 
authorization issued by the Commission, the amount of any 
forfeiture penalty determined under this section shall not 
exceed $25,000 for each violation or each day of a continuing 
violation, except that the amount assessed for any continuing 
violation shall not exceed a total of $250,000 for any single 
act or failure to act described in paragraph (1) of this 
subsection.
  (B) If the violator is a common carrier subject to the 
provisions of this Act or an applicant for any common carrier 
license, permit, certificate, or other instrument of 
authorization issued by the Commission, the amount of any 
forfeiture penalty determined under this subsection shall not 
exceed $100,000 for each violation or each day of a continuing 
violation, except that the amount assessed for any continuing 
violation shall not exceed a total of $1,000,000 for any single 
act or failure to act described in paragraph (1) of this 
subsection.
  (C) Notwithstanding subparagraph (A), if the violator is--
          (i)(I) a broadcast station licensee or permittee; or
          (II) an applicant for any broadcast license, permit, 
        certificate, or other instrument or authorization 
        issued by the Commission; and
          (ii) determined by the Commission under paragraph (1) 
        to have broadcast obscene, indecent, or profane 
        language or images,
the amount of any forfeiture penalty determined under this 
subsection shall not exceed $275,000 for the first violation, 
$375,000 for the second violation, and $500,000 for the third 
and any subsequent violations, with each utterance constituting 
a separate violation, except that the amount assessed a 
licensee or permitee for any number of violations in a given 
24-hour time period shall not exceed a total of $3,000,000. In 
determining the amount of any forfeiture penalty under this 
subparagraph, the Commission, in addition to the elements 
identified in subparagraph (E), shall take into account the 
violator's ability to pay, including such factors as the 
revenue and profits of the broadcast stations that aired the 
obscene, indecent, or profane language and the size of the 
markets in which these stations are located.
  [(C)] (D) In any case not covered in [subparagraph (A) or 
(B),] subparagraph (A), (B), or (C), the amount of any 
forfeiture penalty determined under this subsection shall not 
exceed $10,000 for each violation or each day of a continuing 
violation, except that the amount assessed for any continuing 
violation shall not exceed a total of $75,000 for any single 
act or failure to act described in paragraph (1) of this 
subsection.
  [(D)] (E) The amount of such forfeiture penalty shall be 
assessed by the Commission, or its designee, by written notice. 
In determining the amount of such a forfeiture penalty, the 
Commission or its designee shall take into account the nature, 
circumstances, extent, and gravity of the violation and, with 
respect to the violator, the degree of culpability, any history 
of prior offenses, ability to pay, and such other matters as 
justice may require.
  (F) In the case of a violation in which the violator is 
determined by the Commission under paragraph (1) to have 
uttered obscene, indecent, or profane material, the Commission 
shall take into account, in addition to the matters described 
in subparagraph (E), the following factors with respect to the 
degree of culpability of the violator:
          (i) Whether the material uttered by the violator was 
        live or recorded, scripted or unscripted.
          (ii) Whether the violator had a reasonable 
        opportunity to review recorded or scripted programming 
        or had a reasonable basis to believe live or unscripted 
        programming would contain obscene, indecent, or profane 
        material.
          (iii) If the violator originated live or unscripted 
        programming, whether a time delay blocking mechanism 
        was implemented for the programming.
          (iv) The size of the viewing or listening audience of 
        the programming.
          (v) The size of the market.
          (vi) Whether the violation occurred during a 
        children's television program (as such term is used in 
        the Children's Television Programming Policy referenced 
        in section 73.4050(c) of the Commission's regulations 
        (47 C.F.R. 73.4050(c)) or during a television program 
        rated TVY, TVY7, TVY7FV, or TVG under the TV Parental 
        Guidelines as such ratings were approved by the 
        Commission in implementation of section 551 of the 
        Telecommunications Act of 1996, Video Programming 
        Ratings, Report and Order, CS Docket No. 97-55, 13 
        F.C.C. Rcd. 8232 (1998)), and, with respect to a radio 
        broadcast station licensee, permittee, or applicant, 
        whether the target audience was primarily comprised of, 
        or should have reasonably been expected to be primarily 
        comprised of, children.
  (G) The Commission may double the amount of any forfeiture 
penalty (not to exceed $550,000 for the first violation, 
$750,000 for the second violation, and $1,000,000 for the third 
or any subsequent violation not to exceed up to $3,000,000 for 
all violations in a 24-hour time period notwithstanding section 
503(b)(2)(C)) if the Commission determines additional factors 
are present which are aggravating in nature, including--
          (i) whether the material uttered by the violator was 
        recorded or scripted;
          (ii) whether the violator had a reasonable 
        opportunity to review recorded or scripted programming 
        or had a reasonable basis to believe live or unscripted 
        programming would contain obscene, indecent, or profane 
        material;
          (iii) whether the violator failed to block live or 
        unscripted programming;
          (iv) whether the size of the viewing or listening 
        audience of the programming was substantially larger 
        than usual, such as a national or international 
        championship sporting event or awards program; and
          (v) whether the violation occurred during a 
        children's television program (as defined in 
        subparagraph (F)(vi)).
  (3)(A) At the discretion of the Commission, a forfeiture 
penalty may be determined against a person under this 
subsection after notice and an opportunity for a hearing before 
the Commission or an administrative law judge thereof in 
accordance with section 554 of title 5, United States Code. Any 
person against whom a forfeiture penalty is determined under 
this paragraph may obtain review thereof pursuant to section 
402(a).
  (B) If any person fails to pay an assessment of a forfeiture 
penalty determined under subparagraph (A) of this paragraph, 
after it has become a final and unappealable order or after the 
appropriate court has entered final judgment in favor of the 
Commission, the Commission shall refer the matter to the 
Attorney General of the United States, who shall recover the 
amount assessed in any appropriate district court of the United 
States. In such action, the validity and appropriateness of the 
final order imposing the forfeiture penalty shall not be 
subject to review.
  (4) Except as provided in paragraph (3) of this subsection, 
no forfeiture penalty shall be imposed under this subsection 
against any person unless and until--
          (A) the Commission issues a notice of apparent 
        liability, in writing, with respect to such person;
          (B) such notice has been received by such person, or 
        until the Commission has sent such notice to the last 
        known address of such person, by registered or 
        certified mail; and
          (C) such person is granted an opportunity to show, in 
        writing, within such reasonable period of time as the 
        Commission prescribes by rule or regulation, why no 
        such forfeiture penalty should be imposed.
Such a notice shall (i) identify each specific provision, term, 
and condition of any Act, rule, regulation, order, treaty, 
convention, or other agreement, license, permit, certificate, 
instrument, or authorization which such person apparently 
violated or with which such person apparently failed to comply; 
(ii) set forth the nature of the act or omission charged 
against such person and the facts upon which such charge is 
based; and (iii) state the date on which such conduct occurred. 
Any forfeiture penalty determined under this paragraph shall be 
recoverable pursuant to section 504(a) of this Act.
  (5)(A) No forfeiture liability shall be determined under this 
subsection against any person, if such person does not hold a 
license, permit, certificate, or other authorization issued by 
the Commission, and if such person is not an applicant for a 
license, permit, certificate, or other authorization issued by 
the Commission, unless, prior to the notice required by 
paragraph (3) of this subsection or the notice of apparent 
liability required by paragraph (4) of this subsection, such 
person--
          [(A)] (i) is sent a citation of the violation 
        charged;
          [(B)] (ii) is given a reasonable opportunity for a 
        personal interview with an official of the Commission, 
        at the field office of the Commission which is nearest 
        to such person's place of residence; and
          [(C)] (iii) subsequently engages in conduct of the 
        type described in such citation. [The provisions of 
        this paragraph shall not apply, however, if the person 
        involved is engaging in activities for which a license, 
        permit, certificate, or other authorization is 
        required, or is a cable television system operator, if 
        the person involved is transmitting on frequencies 
        assigned for use in a service in which individual 
        station operation is authorized by rule pursuant to 
        section 307(e), or in the case of violations of section 
        303(q), if the person involved is a nonlicensee tower 
        owner who has previously received notice of the 
        obligations imposed by section 303(q) from the 
        Commission or the permittee or licensee who uses that 
        tower.]
  (B) The provisions of subparagraph (A) shall not apply--
          (i) if the person involved is engaging in activities 
        for which a license, permit, certificate, or other 
        authorization is required or is a cable television 
        system operator;
          (ii) if the person involved is transmitting on 
        frequencies assigned for use in a service in which 
        individual station operation is authorized by rule 
        pursuant to section 307(e);
          (iii) in the case of violations of section 303(q), if 
        the person involved is a nonlicensee tower owner who 
        has previously received notice of the obligations 
        imposed by section 303(q) from the Commission or the 
        permittee or licensee who uses that tower; or
          (iv) in the case of a determination that a person 
        uttered obscene, indecent, or profane material that was 
        broadcast by a broadcast station license or permittee, 
        if the person is determined to have willfully or 
        intentionally made the utterance and knew or should 
        have known that the material would be broadcast, but, 
        notwithstanding any other provision of this section, 
        any person determined by the Commission to have engaged 
        in such activity shall be subject to a forfeiture 
        penalty not to exceed $500,000 for each violation.
  (C) Whenever the requirements of this paragraph are satisfied 
with respect to a particular person, such person shall not be 
entitled to receive any additional citation of the violation 
charged, with respect to any conduct of the type described in 
the citation sent under this paragraph.
  (6) No forfeiture penalty shall be determined or imposed 
against any person under this subsection if--
          (A) such person holds a broadcast station license 
        issued under title III of this Act and if the violation 
        charged occurred--
                  (i) more than 1 year prior to the date of 
                issuance of the required notice or notice of 
                apparent liability; or
                  (ii) prior to the date of commencement of the 
                current term of such license,
        whichever is earlier; or
          (B) such person does not hold a broadcast station 
        license issued under title III of this Act and if the 
        violation charged occurred more than 1 year prior to 
        the date of issuance of the required notice or notice 
        of apparent liability.
For purposes of this paragraph, ``date of commencement of the 
current term of such license'' means the date of commencement 
of the last term of license for which the licensee has been 
granted a license by the Commission. A separate license term 
shall not be deemed to have commenced as a result of continuing 
a license in effect under section 307(c) pending decision on an 
application for renewal of the license.
  (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 270 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 on which the notice was 
        issued, 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.

           *       *       *       *       *       *       *


                  Title VII--Miscellaneous Provisions

SEC. 715. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO PROGRAMMING NOT 
                    SPECIFICALLY BLOCKABLE BY ELECTRONIC MEANS.

  (a) Unlawful Distribution.--It shall be unlawful for any 
person to distribute to the public any violent video 
programming not blockable by electronic means specifically on 
the basis of its violent content during hours when children are 
reasonably likely to comprise a substantial portion of the 
audience.
  (b) Rulemaking Proceeding.--The Commission shall conduct a 
rulemaking proceeding to implement the provisions of this 
section and shall promulgate final regulations pursuant to that 
proceeding not later than 9 months after the date of enactment 
of the Children's Protection from Violent Programming Act. As 
part of that proceeding, the Commission--
          (1) may exempt from the prohibition under subsection 
        (a) programming (including news programs and sporting 
        events) whose distribution does not conflict with the 
        objective of protecting children from the negative 
        influences of violent video programming, as that 
        objective is reflected in the findings in section 
        551(a) of the Telecommunications Act of 1996;
          (2) shall exempt premium and pay-per-view cable 
        programming and premium and pay-per-view direct-to-home 
        satellite programming; and
          (3) shall define the term ``hours when children are 
        reasonably likely to comprise a substantial portion of 
        the audience'' and the term ``violent video 
        programming''.
  (c) Enforcement.--
          (1) Forfeiture penalty.--The forfeiture penalties 
        established by section 503(b) for violations of section 
        1464 of title 18, United States Code, shall apply to a 
        violation of this section, or any regulation 
        promulgated under it in the same manner as if a 
        violation of this section, or such a regulation, were a 
        violation of law subject to a forfeiture penalty under 
        that section.
          (2) License revocation.--If a person repeatedly 
        violates this section or any regulation promulgated 
        under this section, the Commission shall, after notice 
        and opportunity for hearing, revoke any license issued 
        to that person under this Act.
          (3) License renewals.--The Commission shall consider, 
        among the elements in its review of an application for 
        renewal of a license under this Act, whether the 
        licensee has complied with this section and the 
        regulations promulgated under this section.
  (d) Definitions.--For purposes of this section--
          (1) Blockable by electronic means.--The term 
        ``blockable by electronic means'' means blockable by 
        the feature described in section 303(x).
          (2) Distribute.--The term ``distribute'' means to 
        send, transmit, retransmit, telecast, broadcast, or 
        cablecast, including by wire, microwave, or satellite, 
        but it does not include the transmission, 
        retransmission, or receipt of any voice, data, 
        graphics, or video telecommunications accessed through 
        an interactive computer service as defined in section 
        230(f)(2) of the Communications Act of 1934 (47 U.S.C. 
        230(f)(2)), which is not originated or transmitted in 
        the ordinary course of business by a television 
        broadcast station or multichannel video programming 
        distributor as defined in section 602(13) of that Act 
        (47 U.S.C. 522(13)).
          (3) Violent video programming.--The term ``violent 
        video programming'' as defined by the Commission may 
        include matter that is excessive or gratuitous violence 
        within the meaning of the 1992 Broadcast Standards for 
        the Depiction of Violence in Television Programs, 
        December 1992.

                                
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