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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 CORRECTED VERSION In reply refer to: 1800C1-JEE 98060167 98070056 Released: October 26, 1998 CERTIFIED MAIL, RETURN RECEIPT REQUESTED LBJS Broadcasting Company, L.P. Licensee, KLBJ(FM), Austin, TX 8309 North I-35 Suite 200 Austin, TX 78761 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE pursuant to Section 503(b) of the Communications Act of 1934, as amended, under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules. The Commission has received information indicating that Radio Station KLBJ(FM), Austin, TX may have violated 18 U.S.C.  1464 by broadcasting allegedly indecent material during a broadcast of the "Dudley and Bob with Debra Show" on June 12, 1998, at approximately 8:30 a.m. A transcript of the allegedly indecent broadcast, provided by the complainant, is attached. Upon receipt of the complaint, the staff sent you a letter of inquiry asking whether the complaint accurately reflected material broadcast by KLBJ-FM on the date and at the time indicated. In response, you confirmed the accuracy of the transcript provided by the complainant, both as to the language used and as to the date and time aired, and acknowledged that the material was "concededly profane and offensive." You contended, however, that the admitted broadcast of this material did not constitute an indecency violation warranting a sanction by the Commission. In this regard, you stated that the offensive material had been deleted from the original, live broadcast in which it appeared and that it was aired, by tape replay, on June 12, 1998 in contravention of standing station policy and only by virtue of a misunderstanding by station personnel that the tape had been properly edited. You also note that the host's "emotional, short utterance was an isolated incident." You point, moreover, to the immediate actions of the station, all taken prior to any Commission inquiry, to apologize to its listeners for the inadvertent airing of this material, to reprimand the host responsible for the comment, and to revise station policies to ensure that no such misunderstandings would recur. Pursuant to 47 U.S.C.  312(a)(6) and 503(b)(1)(D), the Commission has statutory authority to take appropriate administrative action when licensees broadcast material in violation of 18 U.S.C.  1464,which provides criminal penalties for anyone who "utters any obscene, indecent or profane language by means of radio communication." The Commission has defined indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual and excretory activities or organs. Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705, 2705 (1997) (citing Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). The United States Court of Appeals for the District of Columbia Circuit has upheld the Commission's authority to restrict the broadcast of indecent material at times when there is a reasonable risk that children may be in the audience. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 701 (1996). We believe the subject excerpt is indecent in that it contains language that describes sexual and excretory activities or organs in patently offensive terms. Because the material aired at a time when there was a reasonable risk that children may have been in the audience, it is legally actionable. Thus, it appears that on June 12, 1998, Station KLBJ(FM) violated  1464 by airing indecent programming. We acknowledge that there are substantial mitigating circumstances present in this case. The material was brief and extemporaneous. The station's airing of the offensive comments was inadvertent, constituting a violation of its own clear policies. Prompt remedial action was taken by the station prior to any inquiry by the Commission concerning the incident. While these circumstances warrant a significant reduction in any forfeiture imposed for this violation, we do not believe, given the extremely vulgar nature of the material broadcast, they are sufficient to justify completely eliminating the forfeiture. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, LBJS Broadcasting Company, L.P. is hereby advised of its apparent liability for a forfeiture of THREE THOUSAND Dollars ($3,000), for its apparent violation of 18 U.S.C.  1464 on June 12, 1998. The amount specified was determined in accordance with the Commission's forfeiture guidelines. See In the Matter of The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997). In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R.  1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in the attachment of this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Attachments Radio Station: KLBJ-FM, Austin, TX Date/Time Broadcast: June 12, 1998, at 8:30 a.m. Material Broadcast: Comments 98060167 Complainant states: I was driving to work listening to the radio and the DJ's were doing a bit about "zero tolerance phone Friday." The idea was that they did not want to deal with "idiot callers" and they would hang up on the caller if they asked a stupid question. At approximately 8:30 a.m. there was a person who called and said the station should play more music. The DJ (a male, but I don't know his name) appeared irritated and said on the air "suck my dick you fucking cunt." This was not delayed, beeped, or screened or altered in any way.