[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.