[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.