NOTE: This is a 1994 version of what was issued in 1995 as the Exon bill, S314, and subsequently folded into the Senate Telecom bill. In 1994 it was proposed as an amendment to the Senate telecom bill, S1822. That bill died. Fortunately. This file contains both the text of the amendment, and following it, the text of the what it amends.] Date: 9 Sep 1994 12:29:26 -0500 From: sbarber@panix.com (Steve Barber) Subject: File 1--Exon Amendment text ((Here is the text of the Exon "Communications Decency" amendment to the Communications Act of 1994 (S. 1822) currently winding its way through Congress. Whether you think its effects would be good or bad, it's worth getting familiar with what the text actually says. Included here is the amendment text, Sen. Exon's introductory speech, and an article placed in the Cong. Record to bolster his position. -Steve Barber)) CONGRESSIONAL RECORD -- Senate Tuesday, July 26, 1994 (Legislative day of Wednesday, July 20, 1994) 103rd Congress 2nd Session 140 Cong Rec S 9745 REFERENCE: Vol. 140 No. 99 TITLE: COMMUNICATIONS ACT OF 1994 EXON AMENDMENT NO. 2404 SPEAKER: MR. EXON (Ordered referred to the Committee on Commerce. ) Mr. EXON submitted an amendment intended to be proposed by him to the bill (S. 1822) to foster the further development of the Nation's telecommunications infrastructure and protection of the public interest, and for other purposes; as follows: On page 104, below line 12, add the following: TITLE VIII-OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITIES SEC. 801. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934. (a) Expansion of Offenses. -Section 223 of the Communications Act of 1934 (47 U.S.C. 223) is amended- (1) in subsection (a)(1)- (A) by striking out "telephone" in the matter above subparagraph (A) and inserting in lieu thereof "telecommunications device"; (B) by striking out "makes any comment, request, suggestion or proposal" in subparagraph (A) and inserting in lieu thereof "makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication; (C) by striking out subparagraph (B) and inserting in lieu thereof the following new subparagraph (B): "(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 communication;" and (D) by striking out subparagraph (D) and inserting in lieu thereof the following new subparagraph (D): "(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) in subsection (a)(2), by striking out "telephone facility" and inserting in lieu thereof "telecommunications facility"; (3) in subsection (b)(1)- (A) in subparagraph (A)- (i) by striking out "telephone," and inserting in lieu thereof "telecommunications device,"; and (ii) by inserting "or initiated the communication" after "placed the call"; and (B) in subparagraph (B), by striking out "telephone facility" and inserting in lieu thereof "telecommunications facility"; and (4) in subsection (b)(2)- (A) in subparagraph (A)- (i) by striking out "by means of telephone, makes" and inserting in lieu thereof "by means of telephone or telecommunications device, makes, transmits, or makes available"; and (ii) by inserting "or initiated the communication" after "placed the call"; and (B) in subparagraph (B), by striking out "telephone facility" and inserting in lieu thereof "telecommunications facility". (b) Expansion of Penalties. -Such section, as amended by subsection (a) of this section, is further amended- (1) by striking out "$ 50,000'' each place it appears and inserting in lieu thereof "$ 100,000'' and (2) by striking out "six months" each place it appears and inserting in lieu thereof "2 years". (c) Prohibition on Provision of Access. -Subsection (c)(1) of such action is amended by striking out "telephone" and inserting in lieu thereof "telecommunications device". (d) Conforming Amendment. -The section head of such section is amended to read as follows: "OBSCENE OR HARASSING UTILIZATION OF TELECOMMUNICATIONS DEVICES AND FACILITIES IN THE DISTRICT OF COLUMBIA OR IN INTERSTATE OR FOREIGN COMMUNICATIONS". SEC. 802. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 of the Communications Act of 1943 (47 U.S.C. 559) is amended by striking out "$ 10,000'' and inserting in lieu thereof "$ 100,000''. SEC. 803. BROADCASTING OBSCENE OF LANGUAGE ON RADIO. Section 1464 of title 18, United States Code, is amended by striking out "$ 10,000'' and inserting in lieu thereof "$ 100,000''. SEC. 804. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS. Section 2511 of title 18, United States Code, is amended- (1) in paragraph (1)- (A) by striking out "wire, oral, or electronic communication" each place it appears and inserting in lieu thereof "wire, oral, electronic, or digital communication"; and (B) in the matter designated as item (b), by striking out "oral communication" in the matter above clause (i) and inserting in lieu thereof "communication"; and (2) in paragraph (2)(a), by striking out "wire or electronic communication service" each place it appears (other than in the second sentence) and inserting in lieu thereof "wire, electronic, or digital communication service". SEC. 805. ADDITIONAL PROHIBITION ON BILLING FOR TOLL-FREE TELEPHONE CALLS. Section 228(c)(6) of the Communications Act of 1934 (47 U.S.C. 228(c)(6)) is amended- (1) by striking out "or" at the end of subparagraph (C); (2) by striking out the period at the end of subparagraph (D) and inserting in lieu thereof "; 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. 806. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. Part IV of title VI of the Communications Act of 1934 (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 the video and audio portion of each channel such programming that the subscriber does not subscribe it. "(b) Definition. -In this section the term 'to scramble', in the case of any video programming, means to rearrange the content of the signal of the programming so that the programming cannot be apprehended by persons unauthorized to apprehend the programming.". ************************************************************************* Mr. EXON: Mr. President, I rise to file an amendment to S. 1822, the Communications Act of 1994. I expect the Senate Commerce Committee to take this legislation up next week. I intend to offer this amendment at that time. Simply put, this Communications Decency amendment modernizes the anti-harassment, decency, and anti-obscenity provisions of the Communications Act of 1934. When these provisions were originally drafted, they were couched in the context of telephone technology. These critical public protections must be updated for the digital world of the future. Before too long a host of new telecommunications devices will be used by citizens to communicate with each other. Telephones may one day be relegated to museums next to telegraphs. Conversation is being replaced with communication and electrical transmissions are being replaced with digital transmissions. As the Congress rewrites the Communications Act, it is necessary and appropriate to update these important public protections. Anticipating this exciting future of communications, the Communications Decency amendment I introduce today will keep pace with the coming change. References to telephones in the current law are replaced with references to telecommunications device. The amendment also increases the maximum penalties connected with the decency provisions of the Communications Act to $ 100,000 and 2 years imprisonment. The provision requires cable providers of adult pay-per-view programming to fully scramble the audio and video portions of the programming to homes which do not subscribe to the particular program. Unsuspecting families should not be assaulted with audio of indecent programming or partially scrambled video. The amendment also prevents individuals and companies engaged in the pay-per-call services from by-passing number blocking by connecting individuals to pay-per-call services via a toll-free number. These measures will help assure that the information superhighway does not turn into a red light district. It will help protect children from being exposed to obscene, lewd, or indecent messages. This legislation also protects against harassment. Recent reports of electronic stalking by individuals who use computer communications to leave threatening and harassing messages sent chills through the users of new technologies. Recent stories about the misuse of the internet and 800 numbers also demand action. I ask that two stories related to the misuse of the information technologies be included at the end of my remarks as illustrations of the type of activities this amendment attempts to address. Mr. President, I ask unanimous consent that an article be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: [Los Angeles Times and other articles deleted] Date: Tue, 13 Sep 1994 13:08:09 -0400 (EDT) From: Steve Barber Subject: File 1--Re: Exon Amendment - text of existing laws OK, so now that we've put the Exon amendment text out there (see CuD 6.79), it occurred to me that it isn't all that useful if you don't have the text of what it proposes to amend! So here is Section 223 of the Communications Act as it exists today, and the text of the "safe-harbor" regulation that implements part of it. -Steve Barber ============================ FCC RESTRICTIONS ON OBSCENE AND INDECENT TELEPHONE TRANSMISSIONS A. STATUTE - Title 47, Section 223 of the United States Code (rev. 1989) @ 223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications (a) Whoever-- (1) in the District of Columbia or in interstate or foreign communication by means of telephone-- (A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent; (B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number; (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, during which conversation ensues, solely to harass any person at the called number; or (2) knowingly permits any telephone facility under his control to be used for any purpose prohibited by this section, shall be fined not more than $ 50,000 or imprisoned not more than six months, or both. (b)(1) Whoever knowingly-- (A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with title 18, United States Code, or imprisoned not more than two years, or both. (2) Whoever knowingly-- (A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person's consent, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $ 50,000 or imprisoned not more than six months, or both. (3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restrict access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation. (4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (5)(A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (B) A fine under this paragraph may be assessed either-- (i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or (ii) by the Commission after appropriate administrative proceedings. (6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure. (c)(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication. (2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of-- (A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or (B) any access permitted-- (i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or (ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b). (3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access. B. FCC REGULATION - Title 47, Section 64.201 of the Code of Federal Regulations Restrictions on obscene or indecent telephone message services. 47 CFR 64.201 It is a defense to prosecution under section 223(b) of the Communications Act of 1934, as amended, 47 U.S.C. 223(b), that the defendant has taken one of the actions set forth in paragraph (a), (b), or (c) of this section to restrict access to prohibited communications to persons eighteen years of age or older, and has additionally complied with paragraph (d) of this section, where applicable: (a) Requires payment by credit card before transmission of the message; or (b) Requires an authorized access or identification code before transmission of the message, and where the defendant has: (1) Issued the code by mailing it to the applicant after reasonably ascertaining through receipt of a written application that the applicant is not under eighteen years of age; and (2) Established a procedure to cancel immediately the code of any person upon written, telephonic or other notice to the defendant's business office that such code has been lost, stolen, or used by a person or persons under the age of eighteen, or that such code is no longer desired; or (c) Scrambles the message using frequency inversion techniques so that it is unintelligible and incomprehensible to the calling party without use of a descrambler by the calling party; and (d) Where the defendant is a message sponsor or subscriber to mass announcement services tariffed at this Commission and such defendant prior to the transmission of the message has requested in writing to the carrier providing the public announcement service that calls to his message service be subject to billing notification as an adult telephone message service. ------------------------------ [end]