Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Thursday, February 10, 2005

Broadcast Indecency Bill Reported Out of Committee

The House Committee on Energy and Commerce has reported out the Broadcast Decency Enforcement Act of 2005 (2005 H.R. 310) to the full House by a 46-2 vote. Representative Fred Upton's bill, co-sponsored by more than 30 other House members, would raise maximum fines to $500,000 per violation for "obscene, indecent, and profane broadcasts". The bill further provides

"Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is further amended by adding at the end (after subparagraph (E) as redesignated by section 2(1) of this Act) the following new subparagraphs:
"(F) In the case of a violation in which the violator is determined by
the Commission under paragraph (1) to have uttered obscene, indecent, or
profane material, the Commission shall take into account, in addition to the
matters described in subparagraph (E), the following factors:

      "(i) With respect to the degree of culpability of the
      violator, the following: "(I) whether the material uttered by the violator was  live or recorded, scripted or unscripted; "(II) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming may contain obscene, indecent, or profane material; "(III) if the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming; "(IV) the size of the viewing or listening audience of the programming; and "(V) whether the programming was part of a children's television program as described in the Commission's children's television programming policy (47 CFR 73.4050(c)).

      "(ii) With respect to the violator's ability to pay, the following: "(I) whether the violator is a company or individual; and "(II) if the violator is a company, the size of the company and the size of the market served.

"(G) A broadcast station licensee or permittee that receives programming
from a network organization, but that is not owned or controlled, or under
common ownership or control with, such network organization, shall not be
subject to a forfeiture penalty under this subsection for broadcasting
obscene, indecent, or profane material, if--"(i) such material was within live or recorded programming provided by the network organization to the licensee or permittee; and "(ii)(I) the programming was recorded or scripted, and the
      licensee or permittee was not given a reasonable opportunity to review
      the programming in advance; or--"(II) the programming was live or unscripted, and the licensee or permittee had no reasonable basis to believe the
      programming would contain obscene, indecent, or profane material.

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

SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

Section 503(b)(5) of the Communications Act of 1934
(47 U.S.C. 503(b)(5)) is amended--(1) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively;

      (2) by inserting "(A)" after "(5)";
      (3) by redesignating the second sentence as subparagraph (B);
      (4) in such subparagraph (B) as redesignated--

(A) by striking "The provisions of this paragraph shall not apply,
however," and inserting "The provisions of subparagraph (A) shall not apply
(i)";
(B) by striking "operator, if the person" and inserting "operator, (ii)
if the person";
(C) by striking "or in the case of" and inserting "(iii) in the case
of"; and
(D) by inserting after "that tower" the following: ", or (iv) in the
case of a determination that a person uttered obscene, indecent, or profane
material that was broadcast by a broadcast station licensee or permittee, if
the person is determined to have willfully or intentionally made the
utterance"; and
      (5) by redesignating the last sentence as subparagraph (C).

SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

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

SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.

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

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

Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further
amended by adding at the end (after subsection (c) as added by section 6)
the following new subsection:

"(d) Consideration of License Disqualification for Violations of
Indecency Prohibitions. If the Commission issues a notice under paragraph
(3) or (4) of subsection (b) to a broadcast station licensee or permittee
looking toward the imposition of a forfeiture penalty under this Act based
on an allegation that the licensee or permittee broadcast obscene, indecent,
or profane material, and either--

      "(1) such forfeiture penalty has been paid, or
      "(2) a court of competent jurisdiction has ordered payment of
      such forfeiture penalty, and such order has become final,

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

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

Section 309(k) of the Communications Act of 1934 (47 U.S.C. 309(k)) is
amended by adding at the end the following new paragraph:

      "(5) License renewal consideration of violations of indecency
      prohibitions. If the Commission has issued a notice under paragraph
      (3) or (4) of section 503(b) to a broadcast station licensee or
      permittee with respect to a broadcast station looking toward the
      imposition of a forfeiture penalty under this Act based on an
      allegation that such broadcast station broadcast obscene, indecent, or
      profane material, and--
"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final,
    then such violation shall be treated as a serious violation for
    purposes of paragraph (1)(B) of this subsection with respect to the
    renewal of the license or permit for such station.".

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

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

"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final, then the Commission shall commence a proceeding under subsection
    (a) of this section to consider whether the Commission should revoke the
    station license or construction permit of that licensee or permittee for
    such station.
      "(2) Preservation of authority. Nothing in this subsection
      shall be construed to limit the authority of the Commission to
      commence a proceeding under subsection (a)."."

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