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[The Gorton/Exon Amendment to the 1995 Senate Telecom bill, as of Mar. 23,
1995. Based on the Exon Communications Decency bill, S.314, itself based
on a 1994 Exon-authored amendment to the 1994 Senate Telecom bill. This
is now Title IV of S. 652, the "Telecommunications Competition and
Deregulation Act of 1995". It was offered as an amendment on Thursday,
March 23 by Senators Exon (D-NE) and Gorton (R-WA), at a mark up before
the Senate Commerce Committee. The amendment was adopted on a unanimous
voice vote.]
Page One
Purpose: To protect the public from the misuse of the telecommunications
network and telecommunications devices and facilities
In the Senate of the United States-104th Congress, 1st Session
S.____________________, 104th Congress, 1st Session
March___________, 1995
( ) Referred to the Committee on ___________ and ordered to be printed
( ) Ordered to lie on the table and to be printed
Intended to be proposed by Mr. Exon (for himself and Mr. Gorton)
Viz: At the end of the bill add the following:
1. Title IV - obscene, harrassing, and
2. wrongful utilization of tele-
3. communications facilities.
4. Section 401. Short Title.
5. This title may be cited as the "Communications De-
6. cency Act of 1995".
7. SEC. 402. OBSCENE OR HARASSING USE OF TELECOMMUNI-
8. CATIONS FACILITIES UNDER THE COMMU-
9. NICATIONS ACT OF 1994
10. (a) Offenses. - Section 223 (47 U.S.C. 223) is
11. amended -
Page Two
1. (1) in subsection (a)(1)-
2. (A) By striking out "telephone" in the
3. matter above subparagraph (A) and inserting
4. telecommunications device";
5. (B) by striking out subparagraph (A) and
6. inserting the following:
7. "(A) knowingly -
8. (i) makes, creates, or solicits, and
9. (ii) initiates the transmission of,
10. any comment, request, suggestion, proposal,
11. image, or other communication which is ob-
12. scene, lewd, lascivious, filthy, or indecent;"
13. (2) in subsection (a)(2), by striking "telephone"
14. and inserting "telecommunications" and by striking
15. "section" and inserting "subsection";
16. (3) in subsection (b)(1) -
17. (A) by striking subparagraph (A) and in-
18. serting the following:
19. (A) within the United States, by means of
20. telecommunications device -
21. (i) makes, creates, or solicits, and
22. (ii) purposefully makes available,
23. any obscene communication for commercial pur-
24. poses to any person, regradless of whether the
Page Three
1. maker of such communication placed the call or
2. initiated the communication; or"; and
3. (B) in subparagraph (B) by striking "tele-
4. phone facility" and inserting "telecommuni-
5. cations facility; and
6. (4) in subsection (b)(2)-
7. (A) by striking subparagraph (A) and in-
8. serting the following:
9. "(A) with the United States, by means of
10. telephone or telecommunications device,
11. (i) makes, creates, or solicits, and
12. (ii) purposefully makes available (di-
13. rectly or by recording device),
14. any indecent communication for commercial
15. purposes which is available to any person under
16. 18 years of age or to any other person without
17. that person's consent, regardless of whetherthe
18. maker of such communications placed the call;
19. or"; and
20. (B) in subparagraph (B), by striking "tele-
21. phone facility" and inserting in lieu thereof
22. "telecommunications facility".
23. (b) PENALTIES.- Section 223 of such Act (47 U S.C.
24. 223) is amended-
Page Four
1. (1) by striking out "$50,000" each place it ap-
2. pears and inserting "$100,000"; and
3. (2) by striking "six months" each place it ap-
4. pears and inserting "2 years".
5. (c) PROHIBITIONS ON PROVISIONS OF ACCESS.-Sub
6. section (c)(1) of such section (47 U.S.C. 223(c)) is amend-7.
ed by striking "telephone" and inserting" telecommuni-
8. cations device".
9. (d) ADDITIONAL DEFENSES - Section 223 (47
10. USC 223) is amended by adding at the end the follow-
11. ing
12. (d) ADDITIONAL DEFENCES; RESTRICTIONS ON AC-
13. CESS; JUDICIAL REMEDIES RESPECTING RESTRIC-
14. TIONS. -
15. "(1) No person shall be held to have violated
16. this section with respect to any action by that per-
17 son or a system under his control that is limited
18. solely to the provision of access, including trans-
19. mission, downloading, intermediate storage, naviga-
20. tion tools, and related capabilities not involving the
21. creation or alteration of the content of the commu-
22. nications, for other persons' communications to or
23. from a service, facility, system, or network not under
24. that person's control.
Page Five
1. "(2) It is a defense to prosecution under sub-
2. sections (a)(2), (b)(1)(B) that a de-
3. fendant lacked editorial control over the communica-
4. tion specified in this section.
5. "(3) It is a defense to prosecution under sub-
6. sections (a)(2), (b)(1)(B), and (b)(2)(B) that a de-
7. fendant has taken good faith, reasonable steps, as
8. appropriate -
9. "(A) to provide users with the means to re-
10. strict access to communications described in
11. this section;
12. "(B) provide users with warnings concern-
13. ing the potential for access to such communica-
14. tions;
15. "(C) to respond to complaints from those
16. who are subjected to such communications;
17. "(D) to provide mechanisms to enforce a
18. provider's terms of service governing such com-
19. munications; or
20. "(E) to implement such other measures as
21. the Commission may prescribe to carry out the
22. purposes of this paragraph. Nothing in this sec-
23. tion in and of itself shall be construed to treat
24. enhanced information services as common car-
25. riage.
Page Six
1. "(4) In addition to other defenses authorized
2. under this section; it shall be a defense to prosecu-
3. tion under subsection (b) that a defendant is not en-
4. gaged in a commercial activity that has as a pre-
5. dominant purpose an activity specified in that sub-
6. section.
7. "(5) No cause of action may be brought in any
8. court or administrative agency against any person
9. on account of any action which the person has taken
10. in good faith to implement a defense authorized
11. under this section or otherwise to restrict or prevent
12. the transmission of, or access to, a communication
13. specified in this section. The preceding sentence
14. shall not apply where the good faith defense under
15. subsection (c)(2) apply.
16. "(6) No state or local governmnet may impose
17. any liability in connection with a violation described
18. in subsection (a)(2), (b)(1)(B), (b)(2)(B) that is in-
19. consistent with the treatment of those violations
20. under this section provided, however, that nothing
21. herein shall preclude any State or local governmnet
22. from enacting and enforcing complementary over-
23. sight, liability, and regulatory systems, procedures,
24. and requirements, so long as such systems, proce-
25. dures and requirements govern only interstate serv-
Page Seven
1. ices and do not result in the imposition of inconsist-
2. ent obligations on the provision of interstate serv-
3. ices.
4. "(e) For purposes of subsection (a) and (b), the term
5. "knowingly" means an intentional act with actual knowl-
6. edge of the specific content of the communication specified
7. in this section to another person".
8. (e) CONFORMING AMENDMENT.-The section head-
9. ing for such section is amended to read as follows:
10. "OBSCENE OR HARASSING UTILIZATION OF
11. TELECOMMUNICATIONS DEVICES AND FA-
12. CILITIES IN THE DISTRICT OF COLUMBIA OR
13. IN INTERSTATE OR FOREIGN COMMUNICA-
14. TIONS."
15. SEC. 403. OBSCENE PROGRAMMING ON CABLE TELEVlSION.
16. Section 639 (47 U.S.C. 559) is amended by striking
17. "$10,000" and inserting "$100,000"
18. SEC. 404. BROADCASTING OBSCENE LANGUAGE ON RADIO.
19. Section 1464 of title 18, United States Code, is
20. amended by striking out "$10,000" and inserting
21. "$100,000".
22. Sec.405. INTERCEPTION AND DISCLOSURE OF ELEC-
23. TRONIC COMMUNICATIONS.
24. Section 2511 of title 18, United States Code, is
25. amended -
Page Eight
1. (1) in paragraph (1) -
2. (A) by striking "wire, oral, or electronic
3. communication" each place it appears and in-
4. serting "wire, oral, electronic, or digital com-
5. munication", and
6. (B) in the matter designated as "(b)", by
7. striking "oral communication" in the matter
8. above clause (i) and inserting "communica-
9. tion"; and
10.(2) in paragraph (2)(a), by striking "wire or
11. electronic communication service" each place it ap-
12. pears (other than in the second sentence) and insert-
13. ing "wire, electronic, or digital communication serv-
14. ice".
15. SEC. 406. ADDITIONAL PROHIBITION ON BILLING FOR
16. TOLL FREE TELEPHONE CALLS.
17. Section 228(c)(6) (47 U.S.C. 228(c)(6)) is amend-
18. ed-
19. (1) by striking "or" at the end of subparagraph
20. (C);
21. (2) by striking the period at the end of sub-
22. paragraph (D) and inserting a semicolon and "or";
23. and
24. (3) by adding at the end thereof the following:
Page Nine
1. "(E) the calling party being assessed, by
2. virtue of being asked to connect or otherwise
3. transfer to a pay-per-call service, a charge for
4. the call.".
5. SEC. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
6. (a) PUBLIC, EDUCATIONAL, AND GOVERNMENT
7. CHANNELS.-Section 611(e) of the Communications Act
8. of 1934 (47 U.S.C. 531(e)) is amended by insertingbefore
9. the period the following ", except a cable operator may
10. refuse to transmit any public access program or portion
11. of a public access program which contains obscenity,
12. indecency, or nudity".
13. (b) CABLE CHANNELS FOR COMMERCIAL USE - Section 612(c)(2) of
14. the Communications Act of 1934 (47 U.S.C. 532(c)(2)) is
15. amended by striking "an operator"and inserting "a cable
16. operator may refuse to transmit any leased access
17. program or portion of a leased access program which
18. contains obscenity, indecency, or nudity.
