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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Liability of ) ) ) NPR Phoenix, L.L.C. ) Licensee, KPTY(FM) ) Gilbert, AZ ) ) for a Forfeiture ) MEMORANDUM OPINION AND ORDER Adopted: August 5, 1998 Released: August 6, 1998 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief of the Mass Media Bureau, acting pursuant to authority delegated by  0.283 of the Commission's Rules, has under consideration (1) a $7,500 Notice of Apparent Liability (NAL) issued August 27, 1997, to NPR Phoenix, L.L.C. ("NPR"), licensee of Station KPTY(FM) (formerly KBZR(FM)), Gilbert, Arizona; (2) the licensee's October 6, 1997, response to the NAL; and (3) the licensee's supplement to the response, filed March 12, 1998. 2. The NAL was issued for apparent 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." 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. Indecency has been defined by the Commission 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 or excretory activities or organs. See Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987). 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 ("ACT III"), 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996); Action for Children's Television v. FCC ("ACT I"), 852 F.2d 1332 (D.C. Cir. 1988). 3. A complaint filed with the Commission indicated that on November 14, 1996, Radio Station KPTY(FM), Gilbert, AZ, broadcast the song "Erotic City" by Prince at approximately 5:10 p.m. The complaint, supported by a tape recording of the material broadcast, alleged, and the NAL found, that certain song lyrics were apparently indecent because they described sexual and excretory activities or organs in patently offensive terms. Additionally, the NAL noted that the broadcast aired at a time when there was a reasonable risk that children may have been in the audience. 4. NPR asserts that the NAL should be rescinded and makes several arguments in support of that contention. However, we conclude that the cited material is actionably indecent and that the imposition of a forfeiture for its broadcast is appropriate. 5. The licensee first argues that the NAL should be rescinded because "in almost identical circumstances, the Commission, after initially issuing an NAL to another station for airing the same material (an edited version of the song in question), ultimately determined that no violation had appeared to have occurred." The case of KTFM(FM), DA 96-1858, released November 12, 1996, the station to which the licensee refers, is distinguishable from KPTY. Unlike in the instant case, the complainant in KTFM did not submit a tape or other verified representation of the specific language that was aired. Without such documentation of the broadcast, it was impossible to determine whether a version of the song containing the indecent lyrics was actually aired. That fact, combined with KTFM's denial of owning the unedited version of "Erotic City" led us to determine that "a violation had not been established." We did not conclude, as NPR contends, that "no violation had appeared to have occurred." Thus, our action in the instant case is not inconsistent with our ultimate determination in KTFM. Moreover, in In the Matter of Nationwide Communications, Inc., ("Nationwide") 6 FCC Rcd 3695 (1990), we found the same lyrics contained in the version of "Erotic City" broadcast by KPTY to be actionably indecent. It is in accordance with the precedent set in Nationwide, that we found the version of the song at issue in this case to be apparently actionably indecent and issued the NAL. 6. The licensee also argues that because of the substantial time difference in the length of the unedited version of "Erotic City" (7:24) and the length of the version at issue here (3:08), it is obvious that this version is the edited version. We concede that the version of the song at issue is an edited version, at least as to length. However, the tape of the material broadcast establishes that the indecent lyrics are clearly audible throughout this particular edited version of the song aired by NPR. 7. Additionally, NPR asserts that even the airing of the unedited version of "Erotic City" would not be actionable in light of the our decision in In re Complaint of Peter Branton, ("Branton") 6 FCC 610 (1991). In that case, the Commission found not actionably indecent the 6:25 p.m. broadcast of a news segment about organized crime which included a wiretap of a telephone conversation in which John Gotti, an organized crime figure, repeatedly used variations of the expletive "fuck." In comparing the two broadcasts, NPR correctly points out that "the song 'Erotic City' is entitled to judgment under the same standard as other allegedly indecent speech protected by the First Amendment." However, encompassed within that standard is an analysis of the context in which the questionable material was used. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Though we do not have a "news exception" for indecency cases, it was important to our contextual analysis in Branton that the objectionable language appeared within the broadcast of a bona fide news story. The repeated and gratuitous use of this same offending word in "Erotic City" to refer to sexual activity simply does not present similar contextual considerations. 8. NPR also takes issue with the fact that the Commission did not base its finding of indecency on evidence concerning contemporary standards for the broadcast medium as regards patent offensiveness in the community of license. However, an analysis of contemporary standards for the broadcast medium for the purpose of making an indecency determination does not require an analysis of individual community standards. The appropriate standard is not a local one, as it does not encompass any particular geographic area, but rather, is the standard of an average broadcast viewer or listener. See Infinity Reconsideration, 3 FCC Rcd 930, 933 (1987). This means that the Commission employs its own expertise in broadcast matters and draws on its knowledge of the average viewer or listener. Id. This standard has been an integral part of the Commission's definition of indecency which has been upheld by the Supreme Court in FCC v. Pacifica Foundation, 438 U.S. 726 (1987), as well as by the Court of Appeals for the District of Columbia Circuit in Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988). Letter to Mel Karmazin, 5 FCC Rcd 7291, 7292 (1990). 9. Further, although NPR cites ACLU v. Reno, 929 F.Supp. 824 (E.D. Penn., June 11, 1996), to support its contention that it is improper to impose a single standard of decency upon the entire nation, it should be noted that this opinion dealt strictly with indecency on the Internet. Moreover, nothing in the Supreme Court's superseding affirmance of the district court's opinion in Reno v. ACLU, 117 S.Ct. 2329 (1997), indicates that the decision should have any implications for the broadcast medium. Thus, we do not read such implications into the decision and we reject NPR's argument that the Commission should have based its indecency determination upon broadcast community standards in the greater Phoenix, Arizona, area. 10. Finally, in its Supplement to Response, filed March 12, 1998, NPR contends that our enforcement policy for indecency cases is incongruous with our policy for news distortion cases. As NPR points out, for the Commission to take action in a news distortion case, we require there to be management knowledge and approval of the distortion; however, all that is necessary for a forfeiture to be issued for an indecent broadcast is that the material was aired and the Commission found it to be indecent. Thus, NPR claims we have adopted a "strict liability" approach in indecency cases. NPR takes issue with this approach and contends that it is incongruous to have a higher level of proof in news distortion cases than in indecency cases since the potential for public harm is much greater in news distortion cases than in indecency cases. 11. The Commission is charged with the responsibility of enforcing 18 U.S.C  1464 which mandates sanctions for those who violate the statute. There is no statutory requirement of management involvement before a forfeiture is issued and we have not interpreted the statute to require it. In enforcing  1464 we apply the principle that the licensee is responsible for that which is broadcast on its station. In news distortion cases, we also apply the principle of licensee responsibility. However, because news and comment programming are at the core of speech which the First Amendment is intended to protect, we have long believed that a particularly high threshold should govern Commission intervention in this area. Thus, the Commission has been careful to ensure that it does not substitute its judgment for that of the broadcaster in the selection and presentation of material for news programs and has avoided as wholly inappropriate any role in authenticating news programming. Accordingly, the Commission has required extrinsic evidence of news rigging or slanting before taking any action against a licensee. Such extrinsic evidence includes orders to falsify the news by a licensee, its top management or its news management. Similar considerations are not at work in routine indecency enforcement cases such as that before us here. Thus, we reject the licensee's argument that our approach to indecency enforcement should be akin to our approach in analyzing news distortion cases, in that we should require management involvement in or approval of the indecent broadcast before we issue a forfeiture. 12. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, IT IS ORDERED, that NPR Phoenix, L.L.C., licensee of Station KPTY(FM), formerly Station KBZR(FM), Gilbert, Arizona, FORFEIT to the United States the sum of Seven Thousand Five Hundred Dollars ($7,500) for its willful and repeated violation of Section 1464 of Title 18 of the United States Code. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. In regard to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized in the attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau