S 652 ES
104th CONGRESS
1st Session
AN ACT
To provide for a pro-competitive, de-regulatory national policy
framework designed to accelerate rapidly private sector deployment
of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets
to competition, and for other purposes.
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 `Telecommunications Competition and
Deregulation Act of 1995'.
...
TITLE IV--OBSCENE, HARRASSING, AND WRONGFUL UTILIZATION OF
TELECOMMUNICATIONS FACILITIES
SEC. 401. SHORT TITLE.
This title may be cited as the `Communications Decency Act of
1995'.
SEC. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES
UNDER THE COMMUNICATIONS ACT OF 1934.
(a) Offenses: Section 223 (47 U.S.C. 223) is amended--
`(1) by striking subsection (a) and inserting in lieu thereof:
`(a) Whoever--
`(1) in the District of Columbia or in interstate or foreign
communications--
`(A) by means of telecommunications device knowingly--
`(i) makes, creates, or solicits, and
`(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene, lewd, lascivious, filthy,
or indecent, with intent to annoy, abuse, threaten, or
harass another person;
`(B) makes a telephone call or utilizes a
telecommunications device, whether or not conversation or
communication ensues, without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person
at the called number or who receives the communications;
`(C) makes or causes the telephone of another repeatedly
or continuously to ring, with intent to harass any person
at the called number; or
`(D) makes repeated telephone calls or repeatedly
initiates communication with a telecommunications device,
during which conversation or communication ensues, solely
to harass any person at the called number or who receives
the communication;
`(2) knowingly permits any telecommunications facility under
his control to be used for any activity prohibited by paragraph
(1) with the intent that it be used for such activity,
shall be fined not more than $100,000 or imprisoned not more than
two years, or both.'; and
(2) by adding at the end the following new subsections:
`(d) Whoever--
`(1) knowingly within the United States or in foreign
communications with the United States by means of
telecommunications device makes or makes available any obscene
communication in any form including any comment, request,
suggestion, proposal, or image regardless of whether the maker
of such communication placed the call or initiated the
communications; or
`(2) knowingly permits any telecommunications facility under
such person's control to be used for an activity prohibited by
subsection (d)(1) with the intent that it be used for such
activity;
shall be fined not more than $100,000 or imprisoned not more than
two years, or both.
`(e) Whoever--
`(1) knowingly within the United States or in foreign
communications with the United States by means of
telecommunications device makes or makes available any indecent
communication in any form including any comment, request,
suggestion, proposal, image, to any person under 18 years of
age regardless of whether the maker of such communication
placed the call or initiated the communication; or
`(2) knowingly permits any telecommunications facility under
such person's control to be used for an activity prohibited by
paragraph (1) with the intent that it be used for such activity,
shall be fined not more than $100,000 or imprisoned not more than
two years, or both.
`(f) Defenses to the subsections (a), (d), and (e), restrictions
on access, judicial remedies respecting restrictions for persons
providing information services and access to information services--
`(1) No person shall be held to have violated subsections
(a), (d), or (e) solely for providing access or connection to
or from a facility, system, or network over which that person
has no control, including related capabilities which are
incidental to providing access or connection. This subsection
shall not be applicable to a person who is owned or controlled
by, or a conspirator with, an entity actively involved in the
creation, editing or knowing distribution of communications
which violate this section.
`(2) No employer shall be held liable under this section for
the actions of an employee or agent unless the employee's or
agent's conduct is within the scope of his employment or agency
and the employer has knowledge of, authorizes, or ratifies the
employee's or agent's conduct.
`(3) It is a defense to prosecution under subsection (a),
(d)(2), or (e) that a person has taken reasonable, effective
and appropriate actions in good faith to restrict or prevent
the transmission of, or access to a communication specified in
such subsections, or complied with procedures as the Commission
may prescribe in furtherance of this section. Until such
regulations become effective, it is a defense to prosecution
that the person has complied with the procedures prescribed by
regulation pursuant to subsection (b)(3). Nothing in this
subsection shall be construed to treat enhanced information
services as common carriage.
`(4) No cause of action may be brought in any court or
administrative agency against any person on account of any
activity which is not in violation of any law punishable by
criminal or civil penalty, which activity the person has taken
in good faith to implement a defense authorized under this
section or otherwise to restrict or prevent the transmission
of, or access to, a communication specified in this section.
`(g) No State or local government may impose any liability for
commercial activities or actions by commercial entities in
connection with an activity or action which constitutes a violation
described in subsection (a)(2), (d)(2), or (e)(2) that is
inconsistent with the treatment of those activities or actions
under this section: Provided, however, That nothing herein shall
preclude any State or local government from enacting and enforcing
complementary oversight, liability, and regulatory systems,
procedures, and requirements, so long as such systems, procedures,
and requirements govern only intrastate services and do not result
in the imposition of inconsistent rights, duties or obligations on
the provision of interstate services. Nothing in this subsection
shall preclude any State or local government from governing conduct
not covered by this section.
`(h) Nothing in subsection (a), (d), (e), or (f) or in the
defenses to prosecution under (a), (d), or (e) shall be construed
to affect or limit the application or enforcement of any other
Federal law.
`(i) The use of the term `telecommunications device' in this
section shall not impose new obligations on (one-way) broadcast
radio or (one-way) broadcast television operators licensed by the
Commission or (one-way) cable service registered with the Federal
Communications Commission and covered by obscenity and indecency
provisions elsewhere in this Act.
`(j) Within two years from the date of enactment and every two
years thereafter, the Commission shall report on the effectiveness
of this section.'.
SEC. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking `$10,000' and
inserting `$100,000'.
SEC. 404. BROADCASTING OBSCENE LANGUAGE ON RADIO.
Section 1464 of title 18, United States Code, is amended by
striking out `$10,000' and inserting `$100,000'.
SEC. 405. SEPARABILITY.
(a) If any provision of this title, including amendments to this
title or the application thereof to any person or circumstance is
held invalid, the remainder of this title and the application of
such provision to other persons or circumstances shall not be
affected thereby.
SEC. 406. ADDITIONAL PROHIBITION ON BILLING FOR TOLL-FREE TELEPHONE
CALLS.
Section 228(c)(7) (47 U.S.C. 228(c)(7)) is amended--
(1) by striking `or' at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D) and
inserting a semicolon and `or'; and
(3) by adding at the end thereof the following:
`(E) the calling party being assessed, by virtue of being
asked to connect or otherwise transfer to a pay-per-call
service, a charge for the call.'.
SEC. 407. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
Part IV of title VI (47 U.S. C. 551 et seq.) is amended by adding
at the end the following:
`SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
`(a) Requirement: In providing video programming unsuitable for
children to any subscriber through a cable system, a cable operator
shall fully scramble or otherwise fully block the video and audio
portion of each channel carrying such programming upon subscriber
request and without any charge so that one not a subscriber does
not receive it.
`(b) Definition: As used in this section, the term `scramble'
means to rearrange the content of the signal of the programming so
that the programming cannot be received by persons unauthorized to
receive the programming.'.
SEC. 408. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
(a) Requirement: Part IV of title VI (47 U.S.C. 551 et seq.), as
amended by this Act, is further amended by adding at the end the
following:
`SEC. 641. SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE
PROGRAMMING.
`(a) Requirement: In providing sexually explicit adult
programming or other programming that is indecent and harmful to
children on any channel of its service primarily dedicated to
sexually-oriented programming, a multichannel video programming
distributor shall fully scramble or otherwise fully block the video
and audio portion of such channel so that one not a subscriber to
such channel or programming does not receive it.
`(b) Implementation: Until a multichannel video programming
distributor complies with the requirement set forth in subsection
(a), the distributor shall limit the access of children to the
programming referred to in that subsection by not providing such
programming during the hours of the day (as determined by the
Commission) when a significant number of children are likely to
view it.
`(c) Definition: As used in this section, the term `scramble'
means to rearrange the content of the signal of the programming so
that audio and video portions of the programming cannot be received
by persons unauthorized to receive the programming.'.
(b) Effective Date: The amendment made by subsection (a) shall
take effect 30 days after the date of the enactment of this Act.
SEC. 409. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
(a) Public, Educational, and Governmental Channels: Section
611(e) (47 U.S.C. 531(e)) is amended by inserting before the period
the following: `, except a cable operator may refuse to transmit
any public access program or portion of a public access program
which contains obscenity, indecency, or nudity'.
(b) Cable Channels for Commercial Use: Section 612(c)(2) (47
U.S.C. 532(c)(2)) is amended by striking `an operator' and
inserting `a cable operator may refuse to transmit any leased
access program or portion of a leased access program which contains
obscenity, indecency, or nudity'.
SEC. 410. RESTRICTIONS ON ACCESS BY CHILDREN TO OBSCENE AND
INDECENT MATERIAL ON ELECTRONIC INFORMATION
NETWORKS OPEN TO THE PUBLIC.
(a) Availability of Tag Information: In order--
(1) to encourage the voluntary use of tags in the names,
addresses, or text of electronic files containing obscene,
indecent, or mature text or graphics that are made available to
the public through public information networks in order to
ensure the ready identification of files containing such text
or graphics;
(2) to encourage developers of computer software that
provides access to or interface with a public information
network to develop software that permits users of such software
to block access to or interface with text or graphics
identified by such tags; and
(3) to encourage the telecommunications industry and the
providers and users of public information networks to take
practical actions (including the establishment of a board
consisting of appropriate members of such industry, providers,
and users) to develop a highly effective means of preventing
the access of children through public information networks to
electronic files that contain such text or graphics,
the Secretary of Commerce shall take appropriate steps to make
information on the tags established and utilized in voluntary
compliance with this subsection available to the public through
public information networks.
(b) Report: Not later than 1 year after the date of the enactment
of this Act, the Comptroller General shall submit to Congress a
report on the tags established and utilized in voluntary compliance
with this section. The report shall--
(1) describe the tags so established and utilized;
(2) assess the effectiveness of such tags in preventing the
access of children to electronic files that contain obscene,
indecent, or mature text or graphics through public information
networks; and
(3) provide recommendations for additional means of
preventing such access.
(c) Definitions: In this section:
(1) The term `public information network' means the Internet,
electronic bulletin boards, and other electronic information
networks that are open to the public.
(2) The term `tag' means a part or segment of the name,
address, or text of an electronic file.