Broadcast Decency Enforcement Act of 2005

2006 United States law

The Broadcast Decency Enforcement Act of 2005 (S.193.ENR,Pub. L. 109–235 (text) (PDF)) is an enrolled bill, passed by both Houses of the 109th United States Congress, to increase the fines and penalties for violating the prohibitions against the broadcast of obscene, indecent, or profane language.[1] It was originally proposed in 2004 as the Broadcast Decency Enforcement Act of 2004 (S. 2056/H.R. 3717); this preliminary bill was never passed. Republican Senator Sam Brownback of Kansas sponsored both United States Senate bills; Senators Joe Lieberman (D-Conn.), Lindsey Graham (R-S.C.), Rick Santorum (R-Pa.), George Allen (R-Va.) initially co-sponsored the bill at its reintroduction on January 26, 2005.[2]

## History

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The bill became public law No. 109-235 on June 15, 2006, when President George W. Bush signed it in the Dwight D. Eisenhower Executive Office Building.[3] By this time, the bill was co-sponsored by 27 senators in total. As President Bush made his signature, he commented that the bill was ultimately "going to help American parents by making broadcast television and radio more family-friendly."[3] The bill's credibility and justification for stronger censorship has been contested as a challenger to free speech and artistic expression.[4]

The push for stronger government policies that enforce censorship peaked after the Federal Communications Commission (FCC) investigated the incident that occurred during the Super Bowl XXXVIII Halftime Show in 2004. An estimated 140 million people were watching the show when at the end, pop star Justin Timberlake popped off part of Janet Jackson's corset, exposing her breast.[5] The subsequent "Nipplegate" controversy was a prominent topic of discussion of the general public. At the time, the FCC Chairman Michael Powell said MTV and the CBS network's more than 200 affiliates and company-owned stations could be fined $27,500 a piece.[5] The FCC made notice about the complaints received in the weeks after the incident. The Commission ultimately remarked, "The Commission does, however, have the authority to enforce statutory and regulatory provisions restricting indecency. Specifically, it is a violation of federal law to broadcast obscene, indecent or profane programming. Title 18 of the United States Code, Section 1464 prohibits the utterance of any 'obscene, indecent or profane language by means of radio communication.'"[6] The range of the FCC's authority over censorship for inappropriate conduct on the airwaves, however, was only a part of the concern. As the investigation developed, the major concern was whether or not the monetary retribution for violation was adequate enough.

With the proposal of the Broadcast Decency Enforcement Act of 2004, it was to be determined by the Commissioner that any violator was subject to fines up to $275,000 for the first violation, $375,000 for the second violation, and $500,000 for the third and any subsequent violations.[7] The incremental increase of fines seemed appropriate, but the Houses continuously amended the bill and ultimately it never passed. A strong resistance within the creative community rose in conjunction with the fine appropriation. Radio host Dave Ross noted that "The concern, of course, is that if Congress has the power to outlaw one word, it has the power to outlaw another word.... And the fact that it was indecency and not politics doesn't make that much difference, because if you give the government the power to decide what you can hear, you've given them power over discourse."[4] With responses like these, the legislation eventually lost the momentum behind it. The last action on the bill occurred as it was placed on Senate Legislative Calendar under General Orders. Calendar No. 464 on March 24, 2004.

The bill resurfaced again, a year later, still under the sponsorship of Sen. Brownback. This time, it also received disapproval from a fellow state official, who reprised the concern of the creative community as an offense to the United States Constitution. Congressman Gary Ackerman of the 5th District of New York expressed that "We need to defend our Constitution. We need to defend freedom of speech, and that is really what is at stake here. Passing this bill is a huge mistake and this vote will mark a very dark day in American history. We are going down a slippery slope and no one can honestly say where it will stop. A vote for this bill is a frontal assault on our Constitution and the protections that it gives to the American people."[8]

On June 7, 2006 the House of Representatives proposed a roll call of 230 on a motion to suspend the rules and pass the bill. There were 379 yeas, 35 nays, and 18 withheld votes.[9]

## Text

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The Broadcast Decency Enforcement Act of 2005 reads as follows:

> One Hundred Ninth Congress of the United States of America
>  AT THE SECOND SESSION
>  Begun and held at the City of Washington on Tuesday,
>  the third day of January, two thousand and six

>  An Act

>  To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language.
>  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 2005'.

>  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 (C) and (D) as subparagraphs (D) and (E), respectively;
> (2) by inserting after subparagraph (B) the following new subparagraph:
> '(C) Notwithstanding subparagraph (A), if the violator is--
> '(i)(I) a broadcast station licensee or permittee; or
> '(II) an applicant for any broadcast license, permit, certificate, or other instrument or authorization issued by the Commission; and
> '(ii) determined by the Commission under paragraph (1) to have broadcast obscene, indecent, or profane language, the amount of any forfeiture penalty determined under this subsection shall not exceed $325,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.'; and
> (3) in subparagraph (D), as redesignated by paragraph (1), by striking 'subparagraph (A) or (B) and inserting 'subparagraph (A), (B), or (C)'.[10]

## Hearing

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The United States House Energy Subcommittee on Communications and Technology had its hearing on February 11, 2004.[11]

* Participants
* Fred Upton (R-MI), Chairman of the hearing

* Cliff Stearns (R-CA), Vice Chairman of the hearing

* Joe Barton (R-TX)

* Charles Bass (R-NH)

* Michael Bilirakis (R-FL)

* Mary Bono (R-CA)

* Rick Boucher (D-VA)

* Christopher Cox (R-CA)

* Barbara Cubin (R-WY)

* Jim Davis (D-FL)

* Nathan Deal (R-GA)

* Peter Deutsch (D-FL)

* John Dingell (D-MI)

* Mike Doyle (D-PA)

* Eliot Engel (D-NY)

* Anna Eshoo (D-CA)

* Vito Fossella (R-NY)

* Paul Gillmor (R-OH)

* Bart Gordon (D-TN)

* Gene Green (D-TX)

* Edward Markey (D-MA), Ranking Member

* Karen McCarthy (D-MO)

* Chip Pickering (R-MS)

* Bobby Rush (D-IL)

* John Shimkus (R-IL)

* Bart Stupak (D-MI)

* Billy Tauzin (R-LA)

* Lee Terry (R-NE)

* Edolphus Towns (D-NY)

* Greg Walden (R-OR)

* Ed Whitfield (R-KY)

* Heather Wilson (R-NM)

* Albert Wynn (R-MD)

## See also

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* Shock jock

## References

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1. ^ "The Broadcast Decency Enforcement Act of 2005" (PDF). 15 June 2006. Retrieved 23 March 2011.
2. ^ "Broadcast-Decency Bill Returns - 2005-01-25 10:32:00". Broadcasting & Cable. 25 January 2005. Retrieved 23 March 2011.
3. ^ a b "President Signs the Broadcast Decency Enforcement Act of 2005". Office of the Press Secretary. 15 June 2006. Retrieved 23 March 2011.
4. ^ a b Rahner, Mark (24 April 2004). "FCC indecency fight chilling free speech". The Seattle Times. Retrieved 23 March 2011.
5. ^ a b "Apologetic Jackson says 'costume reveal' went awry". CNN. 2 February 2004.
6. ^ "NOTICE OF APPARENT LIABILITY FOR FORFEITURE". Federal Communications Commission. Retrieved 23 March 2011.
7. ^ "The Broadcast Decency Act of 2004" (PDF). The United States of America Congress. Retrieved 23 March 2011.
8. ^ Ackerman, Gary. "Broadcast Decency Enforcement Act of 2005". House of Representatives. Retrieved 23 March 2011.
9. ^ "FINAL VOTE RESULTS FOR ROLL CALL 230". Archived from the original on 27 November 2011. Retrieved 23 March 2011.
10. ^ "The Broadcast Decency Enforcement Act of 2005" (PDF). The United States of America Congress. Retrieved 23 March 2011.
11. ^ "Congress focuses on television indecency". CNN. 2004-02-11. Retrieved 2022-11-20.

* v
* t
* e

Federal Communications Commission

* Brendan Carr (2017–)
* Geoffrey Starks (2019–)
* Nathan Simington (2020–)
* Anna M. Gomez (2023–)

Chairs|

* Eugene O. Sykes (1934–1935)
* Anning Smith Prall (1935–1937)
* Frank R. McNinch (1937–1939)
* James Lawrence Fly (1939–1944)
* E. K. Jett (1944)
* Paul A. Porter (1944–1946)
* Charles R. Denny (1946–1947)
* Paul A. Walker (1947)
* Wayne Coy (1947–1952)
* Paul A. Walker (1952–1953)
* Rosel H. Hyde (1953–1954)
* George McConnaughey (1954–1957)
* John C. Doerfer (1957–1960)
* Frederick W. Ford (1960–1961)
* Newton N. Minow (1961–1963)
* E. William Henry (1963–1966)
* Rosel H. Hyde (1966–1969)
* Dean Burch (1969–1974)
* Richard E. Wiley (1974–1977)
* Charles D. Ferris (1977–1981)
* Robert Lee (1981)
* Mark S. Fowler (1981–1987)
* Dennis R. Patrick (1987–1989)
* Alfred C. Sikes (1989–1993)
* James Henry Quello (1993)
* Reed Hundt (1993–1997)
* William Kennard (1997–2001)
* Michael Powell (2001–2005)
* Kevin Martin (2005–2009)
* Michael Copps (2009)
* Julius Genachowski (2009–2013)
* Mignon Clyburn (2013)
* Tom Wheeler (2013–2017)
* Ajit Pai (2017–2021)
* Jessica Rosenworcel (2021–2025)
* Brendan Carr (2025–)

Statutory
authority
(Title 47 USC)|

* Communications Act of 1934
* Brinkley Act
* All-Channel Receiver Act (1962)
* Communications Satellite Act of 1962
* Public Broadcasting Act of 1967
* Cable Communications Policy Act of 1984
* Satellite Home Viewer Act (1988)
* Children's Television Act (1990)
* Telephone Consumer Protection Act of 1991
* Cable Television Consumer Protection and Competition Act of 1992
* Communications Assistance for Law Enforcement Act (1994)
* Telecommunications Act of 1996
* Communications Decency Act
* Section 230
* Child Online Protection Act (1998)
* Wireless Communications and Public Safety Act (1999)
* Broadcast Decency Enforcement Act of 2005
* Digital Transition and Public Safety Act of 2005
* Junk Fax Prevention Act of 2005
* Telephone Records and Privacy Protection Act of 2006
* Short-term Analog Flash and Emergency Readiness Act (2008)
* Truth in Caller ID Act of 2009
* Commercial Advertisement Loudness Mitigation Act (2010)
* Local Community Radio Act (2010)
* Satellite Television Extension and Localism Act of 2010

Regulations
and policies
(Title 47 CFR)|

* Title 47 CFR Part 15
* Title 47 CFR Part 68
* Title 47 CFR Part 97

| Broadcast
licensing
and facilities|

* 1978 Broadcast Policy Statement on minority ownership
* 2008 United States wireless spectrum auction
* Ancillary Terrestrial Component
* Antenna structure registration
* AWS-3 auction
* Broadcast call signs
* Broadcast flag
* Broadcast license
* Broadcast range
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* FM Non-Duplication Rule (1964–1986)
* Frequency coordinator
* Local marketing agreement
* MVDDS
* dispute
* Program test authority
* Public file
* Radio Amateur Civil Emergency Service
* Reference distance
* Rimshot broadcasting
* Significantly viewed signals permitted to be carried
* Special temporary authority
* United States National Radio Quiet Zone
* White spaces

|

Broadcasting
content and
programming|

* Actionable indecency
* Broadcasting watershed
* Emergency Alert System
* Equal-time rule
* Family Viewing Hour
* Fairness doctrine (1949–1987)
* Financial Interest and Syndication Rules (1970–1993)
* Fleeting expletive
* Government-access television
* Mayflower doctrine (1941–1949)
* Must-carry
* Non-commercial educational station
* Personal attack rule
* Pervasiveness doctrine
* Prime Time Access Rule
* Public-access television
* Retransmission consent
* Seven dirty words
* Syndication exclusivity
* Zapple doctrine (1970–2014)

Telephone and
the Internet|

* Carterfone decision
* Common carrier
* Comparably efficient interconnection
* Competitive local exchange carrier
* Emergency telephone number
* Enhanced 911
* FCC Computer Inquiries
* Second Computer Inquiry
* FCC mark
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* Feature group
* FCC Open Internet Order
* Incumbent local exchange carrier
* Lifeline program
* National Broadband Plan
* National Do Not Call Registry
* Personal Communications Service
* Basic Trading Areas
* Telecommunications Service Priority
* Priority level
* Total element long run incremental cost
* Traffic pumping
* Universal Licensing System
* Universal Service Fund
* E-Rate

Litigation|

| Supreme Court|

* FCC v. Sanders Brothers Radio Station (1940)
* National Broadcasting Co. v. United States (1943)
* United States v. Southwestern Cable Co. (1968)
* Red Lion Broadcasting Co. v. FCC (1969)
* FCC v. Pacifica Foundation (1978)
* CBS, Inc. v. FCC (1981)
* Sable Communications of California v. FCC (1989)
* Metro Broadcasting, Inc. v. FCC (1990)
* Turner Broadcasting System, Inc. v. FCC (1994)
* Verizon Communications Inc. v. FCC (2002)
* Nixon v. Missouri Municipal League (2004)
* National Cable & Telecommunications Ass'n v. Brand X Internet Services (2005)
* FCC v. Fox Television Stations, Inc. (2009)
* FCC v. AT&T Inc. (2011)
* FCC v. Fox Television Stations, Inc. (2012)
* FCC v. Prometheus Radio Project (2021)

|

Other
federal cases|

* Hush-A-Phone Corp. v. United States (1956)
* American Radio Relay League, Inc. v. FCC (1980)
* Schurz Communications, Inc. v. FCC (1992)
* Lutheran Church–Missouri Synod v. FCC (1998)
* SBC Communications, Inc. v. FCC (1998)
* Satellite Broadcasting & Communications Ass'n v. FCC (2001)
* United States Telecom Association v. FCC (2004)
* Comcast Corp. v. FCC (2010)
* Verizon Communications Inc. v. FCC (2014)
* Tennessee v. FCC (2016)
* Mozilla Corp. v. FCC (2019)
* Prometheus Radio Project v. FCC (2019)
* Consumers' Research v. FCC (2023)

Agency
publications|

* Report on Chain Broadcasting (1941)
* Blue Book (1946)
* FCC Record (1986–)

Advisory
committees|

* FCC Network Study Committee
* Federal-State Joint Conference on Advanced Telecommunications Services
* North American Numbering Council
* Spectrum Task Force
* Technical Advisory Council

Predecessor
agencies|

* Interstate Commerce Commission
* Mann–Elkins Act
* Radio Act of 1912
* Kingsbury Commitment
* Willis Graham Act
* Federal Radio Commission
* Radio Act of 1927
* Davis Amendment
* General Order 32
* General Order 40
* Grand Island FCC Monitoring Station

Related|

* AllVid
* Broadband.gov
* Broadcasting in the United States
* Radio
* FM broadcasting
* Television
* Cable television
* Digital television
* Digital television transition
* High-definition television
* Satellite television
* Communications in the United States
* "FCC Song"
* Federal Communications Bar Association
* History of the telephone in the United States
* Howard Stern Show fines
* Internet in the United States
* Media cross-ownership in the United States
* Modem tax
* National Exchange Carrier Association
* Net neutrality in the United States
* Open spectrum
* "PTV"
* RM-2493
* Security Control of Air Traffic and Air Navigation Aids
* Super Bowl XXXVIII halftime show controversy
* Telecommunications policy of the United States
* Telegraphy in the United States
* "Television and the Public Interest"
* Wireless Ship Act of 1910

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