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Providing for Consideration of H.R. 3717, Broadcast Decency Enforcement Act of 2004 - Part III

Floor Speech

By:
Date:
Location: Washington, DC

Mr. ACKERMAN. Mr. Chairman, never would I have thought that defending the Constitution would be so lonely a job on the floor of the United States House of Representatives. Do not get me wrong, I believe in decency and Mary Poppins and all things nice; but what is at stake here is freedom of speech and the assault thereon.
I become more and more concerned about the concentration of the media in the hands of so few players, that kind of media power concentrated in the hands of so few and influenced specifically by the far right wing and religious right in this country.
We talk about the President and the Presidency, and we say that the President has a bully pulpit, and he does. That does not concern me. What concerns me is the bullyism and the bullying that is going on. When networks and stations and people-owned medias are afraid to be critical of the administration, to impose a fine on speech that you do not like of a half a million dollars a shot, multiplied by 30 or 300 stations, does not have a chilling effect. It has a freezing-out effect where people will be afraid to speak out.
It is not for us to put limits on free speech. The public decides what they want to listen to and wants to hear. They can change the channel, they can change the station, they can turn it off. To talk about motherhood and breast feeding as something that is good is fine, but people are offended by a breast? Is that obscene? Maybe it was in poor taste at the time, but is it obscene?
That Howard Stern on the radio would be threatened with extinction from broadcast because he did not hang up in time on somebody that called in, that was not the issue. The issue is that he is beginning to speak out against the President and the administration, and he is paying the price because of the pressure on the media by the President and his media cronies.
This concentration of the media denies the public access to the right to speak out. It is not just speech that we agree with and we think is pretty that we have to tolerate. The test of freedom of speech is if we tolerate ugly speech, obnoxious speech, and speech that we disagree with. And saying that we are protecting the country and the children, what about personal responsibility? Everybody should protect their own children from what they do not want to listen to or see.
These become weapons of mass communication, and no one will own them except those who have the hands on the levers of power in the White House and their friends.
That is what we find obscene? What is obscene is public officials lying to the public, lying about public policy, lying about education. It is about not providing enough money for AIDS or cancer; that is what is obscene in this country. We need people to defend our Constitution. We need people to defend freedom of speech, and that is really what is at stake here. This is going to become a very dark day in American history. We are going down the slippery slope of limiting our Constitution and the protections that it gives to the American people.
Mr. Chairman, I for one will be voting against this bill.

Mr. UPTON. Mr. Chairman, I yield 1 minute to the gentleman from Ohio (Mr. Gillmor), again, an original cosponsor of the legislation.

Mr. GILLMOR. Mr. Chairman, I am happy to see that today, after a firestorm of public criticism, we have an increasing appetite, both in Congress and the FCC, for punishing those who repeatedly flout the rules, and we have before us a strong measure, one that will boost maximum fine to $500,000, make it easier for the FCC to fine performers rather than just their employers and threaten to strip licenses of repeat offenders.
I should also point out that before and after the Super Bowl incidents, my office received over 500 e-mails from my district concerning indecent broadcasts. I would like to share the message of just one of those constituents.
"I am very glad to see you are taking action to protect our kids from indecent, profane, vulgar and tasteless programming. Just when I thought that TV couldn't get any worse, I witnessed the appalling display at the half-time show of the Super Bowl. My 11-year old son and 15-year-old daughter were speechless. Please know that I am behind you 100 percent. I hope that this bill will strengthen the power of the FCC and allow them to penalize those sponsors."
I think the American people have had enough of "costume reveals" and "wardrobe malfunctions," and I urge passage of the bill.

Mr. MARKEY. Mr. Chairman, I yield 3 minutes to the gentleman from New York (Mr. Serrano).

(Mr. SERRANO asked and was given permission to revise and extend his remarks.)

Mr. SERRANO. Mr. Chairman, I thank the gentleman for yielding me time.
The big question on this bill is why now? There are enough laws in place and regulations to deal with this issue. I feel that some of the good, well-intentioned Members have been caught up in this desire to all of a sudden clear up the airwaves. I believe it is a distraction. It is a weapon of mass distraction, to keep us away from the real issues at hand.
The fact is that this is part, in my opinion, of the continuing thinking of the PATRIOT Act, the philosophy of the PATRIOT Act, that says we will read your e-mails, we will find out what you take out from the library, we will hold you in detention without charges or a lawyer, and we will then tell you what you can listen to on the radio.
Now, let us understand something: The target here is coming from the political and religious right, and it is directed only at that which they think is bad anti-American or indecent. Right-wing radio, which demonizes liberals, minorities, environmentalists, pro-choice and animal rights activists, they are fine. They will not be touched. And let me, for the record, say that I support their right to say whatever they want about me and other liberals and Democrats and minorities. They can say whatever they want. But what we are doing in this country is curtailing only people who are saying something else.
The main target these days is Howard Stern. Now, what does Howard Stern have to do with this issue and the political agenda? Well, for years he supported the administration on the war, he supported the administration on capital punishment, he supported the administration on just about everything.
In the last couple of months, he has had a change of heart and started opposing the war, started opposing the opposition to research, opposing the opposition to pro-choice, and, all of a sudden, he is in deeper trouble than he has ever been before.
How else can we explain that the day before his bosses, Clear Channel, were to face a Congressional committee, they fired him from six markets throughout this country? The FCC has been complaining about his locker humor jokes for years. Some people have suggested that he was not in good taste for years. But now, the big bang to get him off the air. He is left now on Infinity Radio, and he says he will be gone in about another 2 weeks.
Why? Was he okay when he was supporting the administration and in trouble, and how did Clear Channel decide to knock out its number one money maker one day before facing Congress? I wish I was the telephone company and could have heard those phone calls coming in with the political pressure.
My friends, this is a dangerous time. This bill should be defeated, if, for no other reason, than to send a message that there is something larger here at work than simply something you do not like. What I do not like may be something you like and vice versa. The best protection we have is not this bill. Just turn the channel, switch the station.

Mr. MARKEY. Mr. Chairman, I yield back the balance of my time.

Mr. UPTON. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I spoke last night with our former chairman, the gentleman from Louisiana (Mr. Tauzin). He wishes that he was going to be here today, but he is preparing himself for cancer surgery next week. But I know that he would very much like to cast votes on every one of the recorded votes that we have the balance of the afternoon.
I want to remind my colleagues that we do not change the standards. That is not what this bill does. It strictly enforces the standards that are already on the books.
I told this story in my first hearing back in January before the Super Bowl. My staff prepared this broadcast indecency briefing materials book for me. Inside this book are the transcripts of broadcasters that have been fined for broadcasting indecent material. The material that is in this book was all on radio, it was not on TV. But what alarmed me more than anything else was the series of repeat offenders, whether they be in Detroit, Chicago, Washington or Los Angeles, and all broadcast on the public airwaves.
When I read through this book, I was embarrassed. I was embarrassed for the fellow that was sitting next to me on the airplane, because I had to read it like this. I had to shield the material in this book, the transcripts, that were fined thousands of dollars.
I made a mistake that day, Mr. Chairman. I read through the book, it was a long flight, we had terrible weather. In fact, frankly that day when we landed back at DCA, I thought we had gone back to Detroit, there was such bad weather here.
I looked through a lot of material, and I left it by mistake in the pocket in the seat that was in front of me. I walked off the plane, went back through the security, and got all the way to my car when I realized this book was still on the plane. Now, with the new security arrangements, I could not go back to the plane to get this book.
It has got my name on it, "Chairman UPTON, broadcast indecency briefing materials." Man, was I embarrassed, to go back into the Northwest Airline ticket line and ask someone to go retrieve that book. And, yes, they had found it. They saw my name, and they were very chagrined to get it back to me. But, thank goodness, I did get it back, and I do not think anybody read some of the material. But it is public record, and this stuff, this smut stuff, should never be broadcast on the public airwaves.
I was asked the question by the press when we introduced our bill several weeks ago, "Do you think, Mr. Upton, that your legislation is going to take this stuff down, that it will increase somehow the FCC's enforcement division?"
I thought about it, and I said, "You know, I hope not. I hope that this legislation will send a message to the broadcasters and to the talent that is making these indecent remarks," and more than just a word, if you come over here and read these transcripts, it is more than a word, it is page, after page, after page, "that we can get this stuff stopped with this legislation."
I welcome the opportunity to work with my friend, the gentleman from Massachusetts (Mr. Markey). Together, we fashioned a very bipartisan bill every step of the way, from the calling of the witnesses to the questioning to the amendments, every step of the way, and I am pleased that the other body is working on that same procedure, where, again, they voted 34 to 0 earlier this week to pass similar legislation.
Our bill that passed 49 to 1 is a credit to this institution and to the Members on both sides who care about the public airwaves, to make sure that this stuff is not broadcast, and we send a message, whether it be to the shock jock or the DJ or the person with the finger on the pause button at one of those awards, whether it be the Academy Awards, Golden Globes or whatever else, we are going to make an impact, and we are going to let our families know that this stuff has got to stop.
This bill does it. It is not an infringement of first amendment rights. It has all been certified, made legitimate from the courts of the land, from the highest court of the land down to the lowest court, and needs a positive vote here this afternoon.

[Begin Insert]

Mrs. CUBIN. Mr. Chairman, it's about time.
That's what my constituents are telling me. They correctly note the gradual degradation of the quality and decency of programming on TV and radio-and I agree, it's about time Congress acted.
As an original cosponsor of H.R. 3717, I think it's important to note that we introduced this bill prior to the Super Bowl. Some people are blaming Janet Jackson and Justin Timberlake for Congressional action on indecency, but really the Super Bowl halftime show was simply the proverbial straw that broke the camel's back.
It's sort of like cooking a frog in a pot of boiling water. Put him in when it's lukewarm, and slowly turn up the temperature, he'll be cooked by dinner. Throw him into a boiling pot, however, and he'll jump right out. I'm afraid we've let this sneak up on us to the point where we're almost cooked.
I'm not here sharing recipes from Congressman TAUZIN's Cajun cookbook, I'm talking about how we have sat idly by as programming over the public's airwaves has gone to the dogs. The nudity of the Super Bowl halftime show has justly raised the ire of American families, and we are right to demand that people act in a civil manner when they are afforded access to the public's airwaves. Mr. Chairman, it is about time Congress acted and I'm proud to be part of that effort. I urge passage of H.R. 3717.

Ms. MCCARTHY of Missouri. Mr. Chairman, I rise in qualified support of H.R. 3717, the Broadcast Indecency Act of 2004. As an original co-sponsor of this legislation, I agree that we must provide the Federal Communications Commission (FCC) with the resources it needs to effectively enforce existing laws regarding indecent broadcasts. However, I am concerned that giving the FCC the authority to levy exorbitant fines against individuals will have a chilling effect on the exercise of free speech protected under the First Amendment.
Clearly, the FCC should be able to hold individuals responsible for breaching the public trust by violating decency standards in the same way it holds broadcasting entities accountable for what they put on the airwaves. Nonetheless, opening the door to potentially ruinous fines of up to a half a million dollars for individuals, including artists, raises the specter of state sponsored censorship. Will the federal government decide to silence certain individuals in the future for political reasons? Under this bill, it has the authority to do just that.
As this legislation is considered by the Senate, I would hope that this concern is duly addressed and resolved in Conference with the House. Thank you, Mr. Chairman, the opportunity to address my colleagues on this overlooked but critical aspect of what is overall a good and necessary piece of legislation.

Mr. NEUGEBAUER. Mr. Chairman, I rise today in support of H.R. 3717, the Broadcast Decency Enforcement Act.
Over the past few months, I have received nearly 2,000 e-mails, phone calls and letters from my constituents expressing their displeasure with content of TV programs. My constituents are telling me enough is enough. When broadcasters violate indecency rules and a complaint is filed, my constituents want it to be taken seriously by the FCC. They want meaningful penalties that will make broadcasters think twice before airing objectionable programs. They want broadcasters to be held accountable.
Above all, they want to be able to watch an entertainment program with their family without having them exposed to content unsuitable for children. When supposedly family-friendly programming such as the Super Bowl becomes a program many families don't want their children to see, we have a problem. As a grandfather, I worry about being able to turn on the TV and watch a program or sports event with my 3 and 5 year old grandsons.
I think this legislation addresses many of my constituents' concerns. Raising the cap on fines to $500,000 for broadcasts that violate the rules helps show that Congress and the FCC are serious about punishing offenses. The current cap is only $27,000 per violation, a drop in the bucket for most broadcasters. When broadcasters know that indecency violations will be taken into consideration when they ask the FCC to renew their broadcast licenses, they are going to take additional precautions to prevent instances of indecency. If a broadcaster accumulates three violations, this will now trigger a hearing to review revoking that station's license.
This legislation sends a strong signal that Congress is serious about enforcement of broadcast indecency regulations. If all Members' constituents care about this issue as much as mine do, then this should be an easy bill for us to support.
I urge my colleagues to support this legislation.
Ms. WATSON. Mr. Chairman, I rise in strong support to the Schakowsky amendment to H.R. 3717, which would exempt individuals from increase in indecency fines. While I support the goals of H.R. 3717 in giving the Federal Communication Commission more authority to enforce indecency rules, I don't believe individual performers and artists should be threatened by the same penalties imposed on multi-billion dollar corporations, who have the ultimate control on programming decisions.
I believe the provisions within H.R. 3717 to fine individuals would constitute a dangerous chilling effect on artistic expression and a threat to our first amendment rights. It is also completely unnecessary, since broadcast licensees and networks are responsible for programming contents and the decision to air, not the individual artists. Why else would networks start implementing the so-called "five second delay" that would remove any objectionable content before it is broadcasted? The broadcasters understand that they are the ones responsible for the contents they air, because they are the ones who eventually profit from the controversies generated by offensive, indecent, and dumb-down programming.
I hope my colleagues will join me in supporting Congresswoman SHAKOWSKY's amendment that would prevent he broadcasters from scapegoating individual artists and hold them truly responsible in the enforcement of indecency rules.

Mr. BACA. Mr. Chairman, I rise in support of H.R. 3717, a bill that would increase the fines the Federal Communications Commission can impose for the broadcast of obscene, indecent, or profane material.
The level of violent and sexual content in all of forms of media has reached a point where Congress has no choice but to act.
Many people first became aware of this problem while they were watching the Super Bowl, but this is not a new problem.
Whether it is television, movies, video games, or the Internet, you cannot get away from it, and it is getting worse.
As Democrats and Republicans we must continue to work together to address these issues. That is the only way we will be able prevent our children from being needlessly exposed to violent and sexual content in the media.
A growing body of evidence suggests that these messages can be harmful to children's development.
That is why I submitted an amendment that would call on the Surgeon General to produce an annual report assessing the impact of violent media content on children.
Although my amendment was not accepted I hope the Surgeon General will hear us today and understand that Congress takes these issues very seriously and that we demand to know more.
That is also why I created the bipartisan Congressional Sex and Violence in the Media Caucus last October with my friend and colleague, Congressman TOM OSBORNE.
We will be a strong voice within Congress to reduce violent and sexual content in the media.
We will identify ways to work effectively in Congress and in our districts to prevent violence by and against children through legislation, education, outreach, and advocacy.
Just this Tuesday, we introduced H.R. 3914, the Children's Protection from Violent Programming Act, along with Congressman DAVID PRICE.
Our bill would require the FCC to assess the effectiveness of the V-chip to determine if it effectively protects children from television violence.
If the study shows that the V-chip is not effective, then it requires the FCC to create a "safe harbor" so that violent programming is not televised when children are likely to be watching.
I am proud to have received the endorsement of the Parents Television Council and the Consumers Union.
Last year I re-introduced the Protect Children from Video Game Sex and Violence Act, H.R. 669, which would impose penalties on those who rent or sell video games with violent or sexual content to minors.
It is wrong that our children are being exposed to this kind of violence at an age when their minds and values are still being formed. They play these games when many of them cannot distinguish fantasy from reality. Yet today's most popular games are full of senseless acts of sex and violence that brainwash our kids.
These games show people having sex with prostitutes, car-jacking soccer moms, using illegal drugs, decapitating police officers, and killing innocent people as they beg for mercy. If that isn't enough, games like BMX Triple X even show live video footage of naked strippers. Is that what we really want our kids to be watching?
Let me be clear. It is the responsibility of parents to raise their children and determine what they watch on television or what kinds of games they buy. But when children see these things when they are watching the Super Bowl or when they can walk into their neighborhood store and buy video games with mature content, a parent is cut out of the process.
Some will tell you that early exposure to violence has no harmful effects, but a growing body of academic research tells a different story.
Several of the Nation's most respected public health groups have found that viewing entertainment violence can lead to increases in aggressive attitudes, values, and behaviors, particularly in children.
But we have to go beyond facts and figures. What does this mean for our kids?
We are at the beginning of a long and difficult battle for the hearts, the minds, and the souls of our children.
I hope that other Members of Congress and the public will continue to work to protect our children from these harmful materials.

Mr. FRELINGHUYSEN. Mr. Chairman, today I rise in strong support of H.R. 3717, the Broadcast Decency Enforcement Act and commend Representative UPTON for this initiative to "clean up" our Nation's airwaves.
In response to a number of recently televised events, I have received a deluge of complaints and comments from my constituents in New Jersey who are fed up with the offensive and indecent programming invading their homes through television and radio. With their thoughts in mind I cosponsored this legislation to let it be known: broadcasters offering irresponsible and indecent material-especially at times when our children are likely watching or listening-should be held accountable for their actions.
H.R. 3717 would increase the penalty the FCC can assess for violations of broadcast indecency, obscenity and profanity laws from $27,500 to $500,000 per violation. The current fine has become a mere cost of business for many of the large broadcast companies. Today, Congress, on behalf of America's families, is sending a message to the industry that this kind of disregard is not going to be tolerated and hit them where it hurts-in their pockets.
It is time we act to ensure that every family may watch broadcast television programming free of indecency, obscenity and profanity. I believe this legislation takes the right approach. That is why I urge my colleagues to join me in supporting this important initiative and vote yes for H.R. 3717.

Mr. CANTOR. Mr. Chairman, I rise in strong support of the Broadcast Decency Enforcement Act, H.R. 3717. The use of obscenity, which has recently been so casually used on our public airwaves for the entire country to witness, should not and cannot be tolerated.
As a parent, I share the concerns of many regarding the level of offensive television and radio programs that are transmitted into our homes. The recent violations that have occurred disgusted not only me, but damage our society. Families should be able to turn on the television or radio without worrying that obscene programming will negatively impact our children.
This important legislation calls for tougher fines and enforcement penalties for obscene broadcasts. Shameless acts are inexcusable and should be disciplined to ensure that they will not continue and will not be tolerated.
I have received over one thousand letters, emails and phone calls from outraged constituents regarding obscene TV and radio broadcasts in recent months. We cannot accept anything less than an effective solution to this problem; we will not be satisfied until those who are responsible have been reprimanded, and we can be assured this kind of behavior will not continue.
We must give parents the peace of mind that the programming available to their children on television and radio today is appropriate.
I urge all members to support this legislation.

Mr. ROGERS of Alabama. Mr. Chairman, public decency on the airwaves should be a subject on which we all agree. Alabama citizens, like the vast majority of Americans, respect and value the meaning of decency, and appreciate public institutions that reflect the common values of our society.
But what happens when one or more of those institutions repeatedly violate those standards of decency? In the past year, we have seen one or more of the major broadcast networks repeatedly and blatantly violate the Federal Communications Commission standards for decency, and openly flaunt the laws so clearly upheld in the courts.
CBS's halftime show during the 2004 Super Bowl was a new low for television, Mr. Speaker. Watched by nearly 100 million Americans, as well as my family and children, this 30-minute fantasy of filth managed to break all standards of decency, and brazenly shattered all concepts of responsibility and accountability for our Nation's public broadcasters.
Mr. Chairman, this must stop. It's time we hold the broadcasters accountable for their decisions and help take out the televised trash that continues to invade our homes. H.R. 3717, the Broadcast Decency Enforcement Act of 2004, will help turn the tide. The legislation brings accountability for those broadcasters who follow the rules, as well as penalties for those, like CBS during the Super Bowl, knowingly choose to violate them.
H.R. 3717 increases the FCC's penalties for broadcasting obscene, indecent, and profane language to $275,000 for each violation or each day of a continuing violation. The bill also limits the total amount assessed for any continuing violation to $3 million for any single act or failure to act.
As a co-sponsor of this bi-partisan legislation, I am pleased Congress has chosen to bring this to the House floor today. Let me be clear Mr. Chairman: I am not an advocate of censorship. Although I may find the type of programming seen during the 2004 Super Bowl and the 2003 Golden Globe Awards disgusting and disturbing, we must always work hard to defend the cherished freedoms so clearly outlined in our Constitution, including a healthy and free press.
But when those institutions that are charged with upholding the public trust refuse to live up to their responsibilities, someone must draw the line. The Broadcast Decency Enforcement Act of 2004 helps address the continuing degradation on the broadcast airwaves and helps send a clear message to the broadcast industry that Alabama families, like the rest of American families, have had enough.
Programs like the Super Bowl should be celebrations, not cesspools, Mr. Speaker. It is time we as a Congress rise to this occasion and pass this bill, and help stop the recklessness that has so unnecessarily invaded our homes.
Thank you and congratulations to you, Mr. UPTON, for your work in bringing this importance piece of legislation to the House today.

Mr. OXLEY. Mr. Chairman, like most Americans, I am deeply disturbed by the decline of basic decency on our public airwaves. A new low was probably reached during the half-time show of the recent Super Bowl. It's incredible that parents should have to monitor the content of a football game to protect their children. The groundswell for change has been gathering for some time now. In the last few months alone, I have received more than one thousand constituent letters expressing concern about profanity and indecency on the airwaves. The message has been received, loud and clear.
I am proud to be an original cosponsor of the Broadcast Decency Enforcement Act. The bill holds violating stations accountable for trashing our precious public airwaves and hits purveyors where it matters the most, in the wallet. Currently, an FCC indecency violation carries a maximum $27,500 fine, which hardly threatens a multi-million dollar station. This bill increases the fine to a more fitting $500,000. Repeat violators will find themselves on a very long and expensive trip. The FCC will also be given authority to hold hearings on stripping the licenses of repeat offenders.
It's important that we act because even a small blow struck for decency makes a difference. The Supreme Court recently heard arguments on the Child Online Protection Act, which I helped to write. This is a law we approved to prevent kids from being exposed to Internet pornography. I have also been working with my Democrat colleague CHARLES GONZALEZ on the Video Voyeurism Prevention Act. It's long past time that attitudes about decency started changing in this country.

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Mr. UPTON. Mr. Chairman, I yield back the balance of my time.

The CHAIRMAN pro tempore (Mr. Isakson). All time for general debate has expired.

Pursuant to the rule, the committee amendment in the nature of a substitute printed in the bill shall be considered as an original bill for the purpose of amendment under the 5-minute rule and shall be considered read.
The text of the committee amendment in the nature of a substitute is as follows:

H.R. 3717

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Broadcast Decency Enforcement Act of 2004".
SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, AND PROFANE BROADCASTS.
Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is amended-
(1) by redesignating subparagraphs © and (D) as subparagraphs (D) and (E), respectively;
(2) by inserting after subparagraph (B) the following new subparagraph:
"© Notwithstanding subparagraph (A), if the violator is (i) a broadcast station licensee or permittee, or (ii) an applicant for any broadcast license, permit, certificate, or other instrument or authorization issued by the Commission, and
[Page: H1032]
the violator is determined by the Commission under paragraph (1) to have broadcast obscene, indecent, or profane material, the amount of any forfeiture penalty determined under this section shall not exceed $500,000 for each violation."; and
(3) in subparagraph (D), as redesignated by paragraph (1) of this subsection-
(A) by striking "subparagraph (A) or (B)" and inserting "subparagraph (A), (B), or (C)"; and
(B) by adding at the end the following: "Notwithstanding the preceding sentence, if the violator is determined by the Commission under paragraph (1) to have uttered obscene, indecent, or profane material (and the case is not covered by subparagraph (A), (B), or (C)), the amount of any forfeiture penalty determined under this section shall not exceed $500,000 for each violation.".
SEC. 3. ADDITIONAL FACTORS IN INDECENCY PENALTIES; EXCEPTION.
Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is further amended by adding at the end (after subparagraph (E) as redesignated by section 2(1) of this Act) the following new subparagraphs:
"(F) In the case of a violation in which the violator is determined by the Commission under paragraph (1) to have uttered obscene, indecent, or profane material, the Commission shall take into account, in addition to the matters described in subparagraph (E), the following factors:
"(i) With respect to the degree of culpability of the violator, the following:
"(I) whether the material uttered by the violator was live or recorded, scripted or unscripted;
"(II) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming may contain obscene, indecent, or profane material;
"(III) if the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming;
"(IV) the size of the viewing or listening audience of the programming; and
"(V) whether the programming was part of a children's television program as described in the Commission's children's television programming policy (47 CFR 73.4050©).
"(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";
© 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 ©.
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:
"© 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 © 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 forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of subsection (b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,
then, notwithstanding section 504©, 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 forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of section 503(b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,
then, notwithstanding section 504©, 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 forfeiture penalty has been determined by the Commission or an administrative law judge pursuant to paragraph (3) or (4) of section 503(b), and such penalty is not under review, and has not been reversed, by a court of competent jurisdiction,
then, notwithstanding section 504©, the Commission shall commence a proceeding under subsection (a) of this section to consider whether the Commission should revoke the station license or construction permit of that licensee or permittee for such station.
"(2) Preservation of authority.-Nothing in this subsection shall be construed to limit the authority of the Commission to commence a proceeding under subsection (a).".
SEC. 10. REQUIRED CONTENTS OF ANNUAL REPORTS OF THE COMMISSION.
Each annual report submitted by the Federal Communications Commission after the date of enactment of this Act shall, in accordance with
[Page: H1033]
section 4(k)(2) of the Communications Act of 1934 (47 U.S.C. 154(k)(2)), include the following:
(1) The number of complaints received by the Commission during the year covered by the report alleging that a broadcast contained obscene, indecent, or profane material, and the number of programs to which such complaints relate.
(2) The number of those complaints that have been dismissed or denied by the Commission.
(3) The number of complaints that have remained pending at the end of the year covered by the annual report.
(4) The number of notices issued by the Commission under paragraph (3) or (4) of section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) during the year covered by the report to enforce the statutes, rules, and policies prohibiting the broadcasting of obscene, indecent, or profane material.
(5) For each such notice, a statement of-
(A) the amount of the proposed forfeiture;
(B) the program, station, and corporate parent to which the notice was issued;
© the length of time between the date on which the complaint was filed and the date on which the notice was issued; and
(D) the status of the proceeding.
(6) The number of forfeiture orders issued pursuant to section 503(b) of such Act during the year covered by the report to enforce the statutes, rules, and policies prohibiting the broadcasting of obscene, indecent, or profane material.
(7) For each such forfeiture order, a statement of-
(A) the amount assessed by the final forfeiture order;
(B) the program, station, and corporate parent to which it was issued;
© whether the licensee has paid the forfeiture order;
(D) the amount paid by the licensee; and
(E) in instances where the licensee refused to pay, whether the Department of Justice brought an action in Federal court to collect the penalty.
SEC. 11. SENSE OF THE CONGRESS.
(a) Reinstatement of Policy.-It is the sense of the Congress that the broadcast television station licensees should reinstitute a family viewing policy for broadcasters.
(b) Definition.-For purposes of this section, a family viewing policy is a policy similar to the policy that existed in the United States from 1975 to 1983, as part of the National Association of Broadcaster's code of conduct for television, and that included the concept of a family viewing hour.
SEC. 12. IMPLEMENTATION.
(a) Regulations.-The Commission shall prescribe regulations to implement the amendments made by this Act within 180 days after the date of enactment of this Act.
(b) Prospective Application.-This Act and the amendments made by this Act shall not apply with respect to material broadcast before the date of enactment of this Act.
© Separability.-Section 708 of the Communications Act of 1934 (47 U.S.C. 608) shall apply to this Act and the amendments made by this Act.
The CHAIRMAN pro tempore. No amendment to the committee amendment in the nature of a substitute is in order except those printed in House Report 108-436. Each amendment may be offered only in the order printed in the report, by a Member designated in the report, shall be considered read, shall be debatable for the time specified in the report, equally divided and controlled by the proponent and an opponent, shall not be subject to amendment, and shall not be subject to a demand for division of the question.
It is now in order to consider Amendment No. 1 printed in House Report 108-436.

AMENDMENT NO. 1 OFFERED BY MR. UPTON

Mr. UPTON. Mr. Chairman, I offer an amendment.

The CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Upton:
In subsection (d) of section 503 of the Communications Act of 1934, as added by section 7 of the bill, strike paragraph (2) and insert the following:
"(2) a court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,
In the matter that follows paragraph (2) of section 503(d) of the Communications Act of 1934, as added by section 7 of the bill, strike ", notwithstanding section 504©,".
In paragraph (5) of section 309(k) of the Communications Act of 1934, as added by section 8 of the bill, strike subparagraph (B) and insert the following:
"(B) a court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,
In the matter that follows subparagraph (B) of section 309(k)(5) of the Communications Act of 1934, as added by section 8 of the bill, strike ", notwithstanding section 504(c),".
In paragraph (1) of section 312(h) of the Communications Act of 1934, as added by section 9 of the bill, strike subparagraph (B) and insert the following:
"(B) a court of competent jurisdiction has ordered payment of such forfeiture penalty, and such order has become final,
In the matter that follows subparagraph (B) of section 312(h)(1) of the Communications Act of 1934, as added by section 9 of the bill, strike ", notwithstanding section 504(c),".
In section 10, insert "and" at the end of subparagraph © of paragraph (7), strike "; and" at the end of subparagraph (D) of such paragraph and insert a period, strike subparagraph (E) of such paragraph, and after such paragraph insert the following new paragraphs:
(8) In instances where the licensee has refused to pay, whether the Commission referred such order to the Department of Justice to collect the penalty.
(9) In cases where the Commission referred such order to the Department of Justice-
(A) the number of days from the date the Commission issued such order to the date the Commission referred such order to the Department;
(B) whether the Department has commenced an action to collect the penalty, and if such action was commenced, the number of days from the date the Commission referred such order to the Department to the date the action by the Department commenced; and
© whether the collection action resulted in a payment, and if such action resulted in a payment, the amount of such payment.

The CHAIRMAN pro tempore. Pursuant to House Resolution 554, the gentleman from Michigan (Mr. Upton) and a Member opposed each will control 10 minutes.

The Chair recognizes the gentleman from Michigan (Mr. Upton).

Mr. UPTON. Mr. Chairman, I yield 3 minutes to the gentleman from Missouri (Mr. Blunt), the distinguished whip of the House, an original cosponsor of our legislation, and once a proud member of our proud subcommittee.

Mr. BLUNT. Mr. Chairman, with any luck, a future member of the chairman's subcommittee.
Mr. Chairman, I appreciate the great work the gentleman from Michigan (Mr. Upton) did on this bill, bringing this bill to the floor at this time. I also want to say how much I appreciate the gentleman from Texas (Chairman BARTON), the new chairman of our committee, moving quickly to get this legislation to the floor, and also to join my colleagues in our appreciation for and our concern about our former chairman, the gentleman from Louisiana (Mr. Tauzin), as he and his family deal with a health crisis right now.
Mr. Chairman, I think this bill is a bill that we need to do. The gentleman's amendment is one that improves the bill and clarifies the process through which people would have to go if they are subject to the penalties of the bill.
I think the penalties here, the enhanced penalties we heard from many, many people, that the current penalties just are not a deterrent. Not only are the penalties now more in the range that they become a real thing for people who are given custody, temporary custody, of the airwaves to think about, but there is also the possibility they could actually lose their license if they become repeat offenders.
Anybody can have something happen on one occasion that they do not expect to happen, do not anticipate happening, do not approve, are embarrassed by, but the gentleman's bill makes the case that these airwaves do belong to the American people, that this is commercial airspace. If repeatedly somebody chooses to try to benefit financially by what they put on the air that goes beyond the bounds of decency, goes beyond their agreement when they are given custody and right to use these airwaves, I think this bill and the gentleman's clarifying amendment is an amendment that the House needs to deal with.
We all know that it was the Super Bowl half-time show that sort of brought this issue to everybody's attention in this current context, but we also know that if you watched the Super Bowl, if you were watching sort of halfway as I was the half-time show, that we see so much there drifting beyond where we need to be in family entertainment. There are plenty of opportunities in other kinds of entertainment that are not on the airwaves used by commercial television and radio for that.
I appreciate the gentleman's hard work in bringing this bill to the floor in such important and quick fashion, and I rise to support the bill and the gentleman's important amendment to it.

Mr. UPTON. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, obviously I rise in strong support of the Upton amendment. This amendment ensures that those who are the subject of indecency complaints are provided with a constitutional right to due process. For instance, until a forfeiture penalty has been paid or a court has finally determined that a forfeiture penalty is justified, a complaint should not be held against the broadcast station license.

Just like someone who is presumed innocent until proven guilty, this amendment guarantees that a broadcast license cannot be revoked or license renewal rejected until all of the appeals have been heard. This is a good amendment, it was pointed out in our hearing at the very end, and I would hope has bipartisan support. It tightens the loophole.
I just want to say in closing in support of this amendment, I want to thank in particular, I think, the many Members who have been so engaged in this legislation, and I want to thank the staff as well. On our side of the aisle, we have had terrific staff that have worked with the very good staff, terrific staff on the other side as well; but I want to particularly cite a number of individuals: Will Nordwind, Howard Waltzman, Neil Fried, Kelly Zerzan, Joan Hillebrands, Sean Bonyur, Jim Barnette, Jaylyn Connaughton, and Andy Black for their hard work in making sure that this bill got to the floor quickly and swiftly, and that, in fact, it was in a very strong bipartisan fashion.
Mr. Chairman, I reserve the balance of my time.

Mr. MARKEY. Mr. Chairman, if there is no one seeking recognition in opposition, I ask unanimous consent to control the time in opposition, even though I support the amendment.

The CHAIRMAN. Is there objection to the request of the gentleman from Massachusetts?

There was no objecton.

Mr. MARKEY. Mr. Chairman, I yield myself 1 minute.
I would like to say that this is a good amendment. It has been crafted on a bipartisan basis. We have worked very closely together, Democrat and Republican, on this issue right from the beginning; and this amendment reflects that continuing level of cooperation. I just want any of the Members who are listening to this debate to understand that that consensus has been reached.
Mr. MARKEY. Mr. Chairman, I have no other Members seeking recognition, and I yield back the balance of my time.
Mr. UPTON. Mr. Chairman, I yield back the balance of my time.


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