[Senate Report 110-236]
[From the U.S. Government Publishing Office]



110th Congress 
 1st Session                     SENATE                          Report
                                                                110-236
_______________________________________________________________________
 
                                                       Calendar No. 521

           PROTECTING CHILDREN FROM INDECENT PROGRAMMING ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                       S. H.R. deg. 1780



                                     

       DATE deg.December 5, 2007.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred tenth congress
                             first session

                   DANIEL K. INOUYE, Hawaii, Chairman
                   TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West         JOHN McCAIN, Arizona
    Virginia                         TRENT LOTT, Mississippi
JOHN F. KERRY, Massachusetts         KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California            GORDON H. SMITH, Oregon
BILL NELSON, Florida                 JOHN ENSIGN, Nevada
MARIA CANTWELL, Washington           JOHN E. SUNUNU, New Hampshire
FRANK R. LAUTENBERG, New Jersey      JIM DEMINT, South Carolina
MARK PRYOR, Arkansas                 DAVID VITTER, Louisiana
THOMAS CARPER, Delaware              JOHN THUNE, South Dakota
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
          Margaret Cummisky, Staff Director and Chief Counsel
         Lila Helms, Deputy Staff Director and Policy Director
       Jean Toal Eisen, Senior Advisor and Deputy Policy Director
     Christine Kurth, Republican Staff Director and General Counsel
                Paul J. Nagle, Republican Chief Counsel
             Mimi Braniff, Republican Deputy Chief Counsel
                                                       Calendar No. 521
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-236

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




           PROTECTING CHILDREN FROM INDECENT PROGRAMMING ACT

                                _______
                                

                December 5, 2007.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1780]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
H.R. deg. 1780) TITLE deg. to require the 
FCC, in enforcing its regulations concerning the broadcast of 
indecent programming, to maintain a policy that a single word 
or image may be considered indecent, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill joint resolution deg. do 
pass.

                          Purpose of the Bill

  The purpose of S. 1780 is to require the Federal 
Communications Commission (FCC), in administering its 
regulations concerning the broadcast of indecent programming, 
to maintain a policy that a single word or image may be 
considered indecent.

                          Background and Needs

  The FCC's authority to police ``indecent'' speech stems from 
section 1464 of title 18, United States Code, which provides 
that ``[w]hoever utters any obscene, indecent, or profane 
language by means of radio communications shall be fined or 
imprisoned not more than two years, or both.'' Sections 
503(b)(1)(B) and 503(b)(1)(D) of the Communications Act of 1934 
empower the FCC to issue forfeiture penalties for violations of 
section 1464. The FCC first exercised this authority in 1975 
when it issued a declaratory order identifying seven ``dirty 
words'' in a radio monologue by comedian George Carlin as 
indecent. The agency announced its intention to restrict the 
broadcast of such indecent material to hours when children 
would most likely not be in the listening audience.
  The FCC's indecency policy was upheld by the Supreme Court in 
the landmark decision FCC v. Pacifica Foundation, 438 U.S. 726 
(1978) (Pacifica). In Pacifica, the Court held that 
broadcasting is entitled to more limited First Amendment 
protection than other forms of communication because of its 
uniquely pervasive presence and its unique accessibility to 
children.
  In the decade that followed Pacifica, the FCC took a more 
limited approach toward indecency enforcement. For instance, in 
a case where the broadcaster in question had aired programming 
during the morning hours containing some of the terms used in 
the Carlin monologue, the FCC determined that the broadcaster 
did not violate section 1464, because that the language did not 
amount to ``verbal shock treatment'' and the complainant had 
failed to show that this was more than ``isolated use.'' 
Application of Pacifica Found., 95 F.C.C.2d 750 at paras. 16, 
18 (1983).
  In a 1987 decision, however, the FCC revised the way in which 
it enforced broadcast indecency violations, explaining that the 
exclusive focus on specific words ``made neither legal nor 
policy sense.'' Infinity Broad. Corp., 3 FCC Rcd 390 at para. 
5. The FCC noted that going forward it would use the generic 
definition of indecency that was used in the order upheld by 
Pacifica. Under that definition, ``language or material that 
depicts or describes, in terms patently offensive as measured 
by contemporary community standards for the broadcast medium, 
sexual or excretory activities or organs.'' Id. at para. 2. The 
D.C. Circuit ultimately upheld the FCC's decision to move 
beyond the narrow specifics of the monologue underlying 
Pacifica and use this generic definition. Action for Children's 
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)(en banc).
  To provide further guidance, the FCC later issued a policy 
statement on broadcast indecency. Industry Guidance on the 
Commission's Case Law Interpreting 18 U.S.C. Sec. 1464, 16 FCC 
Rcd 7999 (2001)(Policy Statement). In this Policy Statement, 
the FCC noted that indecent speech is protected by the First 
Amendment, thus requiring the government to identify a 
compelling interest for any regulation it may impose and choose 
the least restrictive means to further that interest. However, 
even under this rigorous standard, the FCC noted the courts' 
consistent support for the FCC's authority to regulate indecent 
speech, albeit with certain limitations. Id. at para. 3. In 
particular, the FCC noted the Supreme Court's recognition in 
Reno v. ACLU, 521 U.S. 844 (1997), of the ``special 
justifications for regulation of the broadcast media that are 
not applicable to other speakers.'' Policy Statement at para. 
4. The FCC went on to explain that an indecency finding 
involves two determinations. First, the FCC considers whether 
the material at issue describes or depicts sexual or excretory 
organs or activities. Second, the FCC considers whether the 
broadcast is patently offensive as measured by contemporary 
community standards for the broadcast medium.
  The FCC noted in its policy statement that it considers three 
factors in determining whether or not material is patently 
offensive. First, the FCC considers the explicit or graphic 
nature of the description or depiction of sexual or excretory 
organs or activities. Second, the FCC considers whether the 
material dwells on or repeats these activities at length. 
Third, the FCC considers whether the material appears to pander 
or is used to titillate or appears to have been presented for 
its shock value. In discussing the second factor in its 
patently offensive test, the FCC cited examples distinguishing 
between material that dwells on offensive content and material 
that is fleeting and isolated (Policy Statement at para. 19).
  In 2003, during a live broadcast of the Golden Globe Awards, 
the musician Bono used the F-Word as an adjective before the 
word ``brilliant'' to described an award. In response, the FCC 
received hundreds of complaints. The agency's Enforcement 
Bureau initially denied the complaints directed at this 
broadcast on the basis that the expletive was not used to 
describe sexual or excretory organs or actions and that the 
utterance was fleeting and isolated. Complaints Against Various 
Broadcast Licensees Regarding their Airing of the ``Golden 
Globes Awards'' Program, 18 FCC Rcd 19859 (Enforcement Bureau 
2003). On review, however, the FCC reversed the Bureau's 
decision, holding that the word at issue has inherently sexual 
connotation and was patently offensive under contemporary 
community standards. Complaints Against Various Broadcast 
Licensees Regarding their Airing of the ``Golden Globes'' 
Awards Program, 19 FCC Rcd 4975 at para. 3 (2004) (Golden 
Globes). Furthermore, while noting that its finding was 
contrary to prior rulings relying on the deliberate and 
repetitive use of patently offensive words, the FCC found that 
the fleeting and isolated use of the word at issue was 
irrelevant and concluded that its use in the context at issue 
was indecent:

        The ``F-Word'' is one of the most vulgar, graphic and 
        explicit descriptions of sexual activity in the English 
        language. Its use invariably invokes a coarse sexual 
        image. The use of the ``F-Word'' here, on a nationally 
        telecast awards ceremony, was shocking and gratuitous. 
        In this regard, NBC does not claim that there was any 
        political, scientific or other independent value of use 
        of the word here, or any other factors to mitigate its 
        offensiveness. If the Commission were routinely not to 
        take action against isolated and gratuitous uses of 
        such language on broadcasts when children ere expected 
        to be in the audience, this would likely lead to more 
        widespread use of the offensive language. Neither 
        Congress nor the courts have ever indicated that 
        broadcasters should be given free rein to air any 
        vulgar language, including isolated and gratuitous 
        instances of vulgar language. The fact that the use of 
        this word may have been unintentional is irrelevant; it 
        still has the same effect of exposing children to 
        indecent language. . . .
        While prior Commission and staff action have indicated 
        that isolated or fleeting broadcasts of the ``F-Word'' 
        such as that here are not indecent or would not be 
        acted upon, consistent without our decision today we 
        conclude that any such interpretation is no longer good 
        law. In Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 
        (1987) (subsequent history omitted), for example, the 
        Commission stated as follows: ``If a complaint focuses 
        solely on the sue of expletives, we believe that . . . 
        deliberate and repetitive use in a patently offensive 
        manner is a requisite to a finding of indecency.'' The 
        staff has since found that the isolated or fleeting use 
        of the ``F-Word'' is not indecent in situations 
        arguably similar to that here. We now depart from this 
        portion of the Commission's 1987 Pacifica decision as 
        well as all of the cases cited in notes 31 and 32 and 
        any similar cases holding that isolated or fleeting use 
        of the ``F-Word'' or a variant thereof in situations 
        such as this is not indecent and conclude that such 
        cases are not good law to that extent. We now clarify, 
        as we have made clear with respect to complaints going 
        beyond the use of expletives, that the mere fact that 
        specific words or phrases are not sustained or repeated 
        does not mandate a finding that material that is 
        otherwise patently offensive to the broadcast medium is 
        not indecent.  Id. at paras. 9, 12 (internal footnotes 
        omitted).

  In making this change in policy, the FCC further commented on 
the development of technologies that licensees could use to 
bleep out even isolated utterances of offending words and on 
the fact that such an outcome might have been foreseeable to 
licensees given prior incidents involving the similar use of 
offensive language during live broadcasts of award shows.
  Several parties, including broadcasters, filed petitions for 
reconsideration of the Golden Globes decision. These petitions 
remain pending at the FCC. Nonetheless, the FCC has applied the 
policy announced in Golden Globes in subsequent cases.
  Notably, on February 21, 2006, the FCC issued an order 
resolving various complaints against several television 
broadcasts that found indecency violations in four separate 
programs consistent with the policy announced in Golden Globes. 
Complaints Regarding Various Television Broadcasts between 
February 2, 2002 and March 8, 2005, 21 FCC Rcd 2664 (Omnibus 
Order). Citing Golden Globes, the FCC dismissed the fact that 
the expletives used in these four programs were fleeting and 
isolated and again held that repeated use is not a prerequisite 
for a finding of indecency. Nonetheless, the FCC declined to 
issue a forfeiture in these cases in light of the fact that the 
broadcasts at issue occurred before the release of the Golden 
Globes decision.
  Several broadcasters filed a petition for review of the 
Omnibus Order. The action was consolidated in the Second 
Circuit Court of Appeals. Before briefing began, however, the 
FCC sought a voluntary remand in order to address petitioners' 
arguments regarding the ability of licensees to seek a full 
opportunity to be heard before the FCC issues a final decision. 
The court granted the FCC's request for remand and provided the 
agency with sixty days to issue a final appealable order. In 
response, the FCC issued a public notice seeking comment on its 
decision in the Omnibus Order. In response to the comments it 
received, the FCC issued a new decision on November 6, 2006. 
Complaints Regarding Various Television Broadcasts between 
February 2, 2002 and March 8, 2005, FCC 06-166 (Remand Order).
  In the Remand Order, the FCC reaffirmed its earlier finding 
with respect to two of the four programs it had found indecent 
in the Omnibus Order. Specifically, the FCC reaffirmed its 
finding that remarks featured in the 2002 and 2003 Billboard 
Music Awards programs were indecent. In the 2002 Billboard 
Music Awards program, Cher stated: ``People have been telling 
me I'm on the way out every year, right? So f*** 'em.'' In the 
2003 Billboard Music Awards program, Nicole Richie stated: 
``Have you ever tried to get cow sh** out of a Prada purse? 
It's not so f***ing simple.'' Moreover, the FCC noted that the 
remarks in the 2003 Billboard Music Awards would have been 
actionably indecent prior to its Golden Globes decision because 
of the repeated use of offensive language.
  In the Remand Order, the FCC also reversed its earlier 
finding with respect to one of the four programs it had found 
indecent in the Omnibus Order, because it occurred in the 
context of a bona fide news interview. The language at issue 
was heard during a live interview on the CBS Early Show of a 
contestant from the CBS reality show Survivor. The FCC noted 
that in light of First Amendment concerns, this required 
proceeding ``with the utmost restraint when it comes to news 
programming.'' Id. at paras. 71-72. In addition, on review, the 
FCC dismissed the complaint underlying one of the four programs 
it had found indecent in the Omnibus Order because the lone 
individual complaining of the material resided in an area of 
the country where it was broadcast during the ``safe harbor'' 
period after 10 p.m. Id. at para. 75; see also 47 C.F.R. 
section 73.999(b).
  Following the release of the Remand Order, the broadcasters' 
appeal of the Omnibus Order was automatically reinstated in the 
Second Circuit Court of Appeals. On June 7, 2007, the court 
released a decision remanding the FCC's efforts to declare 
``fleeting expletives'' indecent speech. Fox v. FCC, 489 F.3d 
444 (2nd Cir. 2007) (Fox). In a divided opinion, the majority 
concluded that the FCC decision sanctioning fleeting expletives 
was arbitrary and capricious under the Administrative Procedure 
Act. Specifically, the majority concluded that the FCC departed 
from its prior precedent without providing a reasoned analysis 
explaining why it was doing so. Though the Fox holding was 
procedural, the majority decision continued in dicta to 
question if it would be constitutionally permissible for the 
agency to sanction fleeting expletives as indecent speech. In 
concluding, the majority went so far as to suggest their doubts 
that the FCC would be able to proffer a revised analysis that 
would meet constitutional muster.
  In contrast, the dissenting judge found that the FCC gave a 
reasoned explanation for its change of policy and therefore 
complied with the Administrative Procedure Act. The dissenting 
judge further noted that agencies are not locked into statutory 
interpretations but are free to change standards as their 
expertise and experience may require.
  S. 1780 would clarify the authority of the FCC to regulate 
indecent speech in light of the Fox decision. Specifically, it 
would clarify that in enforcing Federal restrictions on the 
broadcast of indecent or profane material, the FCC shall 
maintain a policy that indecent or profane material may include 
a single word or image. In so doing, the legislation does not 
require the FCC to adopt a per se rule in considering whether 
isolated utterances of offensive language constitute an 
indecency violation. Rather, the legislation allows the FCC to 
continue its consideration of the full context in which the 
material appeared when considering whether material is patently 
offensive. The FCC has never had an exception to its indecency 
enforcement policies for isolated images, and the Fox decision 
addressed only spoken expletives. In order to be complete, 
however, S.1780 would include images as well as utterances.

                         Summary of Provisions

  S. 1780, the Protecting Children from Indecent Programming 
Act, would amend the Public Telecommunications Act of 1992 by 
requiring the FCC, in enforcing its regulations concerning the 
broadcast of indecent programming, to maintain a policy that a 
single word or image may be considered indecent.

                          Legislative History

  The Protecting Children from Indecent Programming Act (S. 
1780) was introduced by Senator Rockefeller on July 12, 2007, 
and referred to the Senate Committee on Commerce, Science, and 
Transportation. The bill is cosponsored by Senators Inouye, 
Stevens, Pryor, McCain, Byrd and Brownback. On July 19, 2007, 
the Committee considered the bill in an open Executive Session. 
The bill was adopted by voice vote. The Committee, without 
objection, ordered that S. 1780 be reported.

                            Estimated Costs

  In compliance with subsection (a)(3) of paragraph 11 
of rule XXVI of the Standing Rules of the Senate, the Committee 
states that, in its opinion, it is necessary to dispense with 
the requirements of paragraphs (1) and (2) of that subsection 
in order to expedite the business of the Senate. deg.
  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:

S. 1780--Protecting Children from Indecent Programming Act

    S. 1780 would require the Federal Communications Commission 
(FCC) to maintain its current policy that a single word or 
image may constitute indecent programming. The FCC considers 
such actions to fall within its authority and levies penalties 
when violations occur. As a result, single words or images that 
are considered to be indecent, obscene, or profane can draw 
civil penalties (which are recorded in the budget as revenues). 
CBO estimates that enacting the bill would have no effect on 
revenues over the 2008-2017 period, and also would have no 
other impact on the budget.
    According to the FCC, cases in which a single word or image 
are broadcast that would be considered obscene, indecent, or 
profane are very infrequent, but fines levied by the FCC for 
such actions have resulted in some court challenges by the 
broadcasters. This legislation would clarify the statutory 
basis for the FCC's current policy.
    S. 1780 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on public or private entities. Because 
the bill would codify existing policy, it would not impose a 
new enforceable duty on public or private broadcasters.
    The CBO contact for this estimate is Barbara Edwards. The 
estimate was approved by G. Thomas Woodward, Assistant Director 
for Tax 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:

                       NUMBER OF PERSONS COVERED

  S. 1780 is intended to require the FCC, in enforcing its 
regulations concerning the broadcast of indecent programming, 
to maintain a policy that a single work or image may be 
considered indecent. The persons subject to the regulations the 
FCC would implement under this bill are broadcast licensees 
already subject to FCC authority to police obscene, indecent, 
or profane language by means of radio communications under 
section 1464 of title 18, United States Code.

                            ECONOMIC IMPACT

  S. 1780 would not have an adverse impact on the Nation's 
economy.

                                PRIVACY

  The reported bill would have no impact on the personal 
privacy of United States citizens.

                               PAPERWORK

  The reported bill should not significantly increase paperwork 
requirements for individuals and businesses.

                      Section-by-Section Analysis

Section 1. Short title
  The short title would provide that the Act could be cited as 
the ``Protecting Children from Indecent Programming Act''.
Section 2. FCC may regard single word or image as indecent
  Section 2 would amend the Public Telecommunications Act of 
1992 by adding a new subsection (c).
  New subsection (c) would direct the FCC, in administering its 
regulations concerning the broadcast of indecent programming, 
to maintain a policy that a single word or image may be 
considered indecent.

                        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):

PUBLIC TELECOMMUNICATIONS ACT OF 1992

                  BROADCASTING OF INDECENT PROGRAMMING

                          [47 U.S.C. 303 note]

  Sec. 16. (a) FCC Regulations.--The Federal Communications 
Commission shall promulgate regulations to prohibit the 
broadcasting of indecent programming--
          (1) between 6 a.m. and 10 p.m. on any day by any 
        public radio station or public television station that 
        goes off the air at or before 12 midnight; and
          (2) between 6 a.m. and 12 midnight on any day for any 
        radio or television broadcasting station not described 
        in paragraph (1).
The regulations required under this subsection shall be 
promulgated in accordance with section 553 of title 5, United 
States Code, and shall become final not later than 180 days 
after the date of enactment of this Act.
  (b) Repeal.--Section 6078 of the Departments of Commerce, 
Justice, and State, the Judiciary, and Related Agencies 
Appropriations Act, 1989 (Public Law 100-459; 102 Stat. 2228) 
is repealed.
  (c) Single Word or Image Policy.--In administering the 
regulations promulgated under subsection (a), the Commission 
shall maintain a policy that a single word or image may 
constitute indecent programming.

                                  
