AMENDMENT No. 1362
By [Senators Jim J.] Exon and [Daniel R.] Coats
To Amdt No. 1288
S. 652
Purpose: To provide protections against harassment, obscenity and
indecency to minors by means of telecommunications devices.
In the Senate
S. 652
(title) The Communications Decency Act of 1995
AMENDMENT intended to be proposed by Mr. Exon, Mr. Coats
To the amendment offered by Mr. Leahy
In lieu of the matter to be inserted, insert the following:
SEC. ___ 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) in 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
communications ensues, without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person
at the called number or who receives the communication;
(C) 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;
(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; or;
(2) knowingly and willfully permits any telecommunications
facility under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be
so-used for such activity,
shall be fined not more than $100,000 or imprisoned not
more than two years, or both.
(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 a
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 telecommunication facility under such
person's control 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 comment, request,
suggestion, proposal, image, or other communication which is
available to any person under 18 years of age 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 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
carriage or information services and access to informational services -
(1) No person shall be held to have violated subsections (a), (d), or
(e) soley 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 an individual who is owned controlled by, or
a conspirator with, an entity actively involved in the creation,
edititing 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 regulation becomes effective, it is a
defense to prosecution that the person has complied with the
procedures prescribed by regulation pursuant to subection
(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 a
violation described in subsection (a)(2), (d)(2), or (e)(2) that is
inconsistent with the treatment of those violations 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 obligations
on the provision of interstate services. Furthermore, nothing in this
subsection shall preclude any State or local government from governing
conduct not covered by this section.
(h) Nothing in this subsection (a), (d) or (e) 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. __ OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking "$10,000" and
inserting "$100,000".
Sec. __ 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. __ 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.
