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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 In reply refer to: 1800C1-JEE 98030410 98110091 Released: March 17, 1999 CERTIFIED MAIL, RETURN RECEIPT REQUESTED Back Bay Broadcasting, Inc. Licensee, WWKX(FM), Woonsocket, RI 1110 Central Avenue Pawtucket, RI 02861 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 WWKX(FM), Woonsocket, RI, has apparently violated 18 U.S.C.  1464 by broadcasting allegedly indecent material during the "Real Deal Mike Neil Show" on March 16, 1998, between 6 a.m. and 10 p.m. A transcript of the allegedly indecent broadcast, taken from a tape submitted 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 WWKX(FM) on the date and time indicated. In response, you stated that you "do not deny that material substantively the same as the transcript you sent to us was broadcast." You further stated "as best we can determine, the material was broadcast on March 16, 1998, at approximately 6:30 p.m." In addition, you acknowledged that "there are several words in the transcript that may be inappropriate in the context where they were used in this broadcast, at least prior to 10 p.m." However, you also contended that the questionable words were not actually broadcast by WWKX because they were "bleeped" out during the broadcast (as is indicated in the transcript). 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 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, 852 F.2d 1332 (D.C. Cir. 1988). The court subsequently concluded that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a properly tailored means of vindicating the government's compelling interest in the welfare of children. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996). The subject material is indecent because it contains language that describes sexual and excretory activities or organs in patently offensive terms. Since the material aired at a time when there was a reasonable risk that children may have been in the audience, it is legally actionable. We acknowledge that attempts were made to "bleep" out the suspect material. However, a review of the audiotape of the broadcast indicates that the editing was ineffective and merely resulted in a "bleep" in the middle of clearly recognizable words (or in some cases a "bleep" after the word). Because the words were recognizable, notwithstanding the editing, and the context within which they were used in this broadcast meets the Commission's definition of indecency, it appears that on March 16, 1998, Station WWKX(FM) violated 18 U.S.C.  1464 by airing indecent programming. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, Bay Back Broadcasting, Inc., is hereby advised of its apparent liability for a forfeiture of SEVEN THOUSAND dollars ($7,000), for its apparent willful and repeated violations of 18 U.S.C.  1464 on March 16, 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 to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Attachments Radio Station: WWKX-FM, Pawtucket, RI Date/Time Broadcast: March 16, 1998, at 6:30 p.m. and 8 p.m. Material Broadcast: The Real Deal Mike Neil (Phone conversation) 98030410 MV: Male Voice MC: Male Caller FV: Female Voice * * MV: It went something like this. Hot 1-0-6. MC: Hey douche bag. MV: Douche bag, hey what's up, fu(Bleep)ck head? What do you want? MC: Hey, why are you trying to act like Howard? MV: Trying to act like Howard. MC: Yeah. MV: Dude, what I do, I do. MC: Nah, nah, nah, nah, I've listened to you before and all of a sudden, like starting yesterday, you started swearing, now you're starting to so, and starting. MV: Dude, dude, dude, you don't know where else I've worked. MC: What? MV: You don't know where else I've worked, what other, I've done mornings before, I've done afternoons before, I did nights, it was a totally different thing. MC: But you're acting like Howard now. MV: No, I'm not acting like Howard. MC: Yeah, you are. MV: You Howard's bitch? MC: Huh? MV: You his fuck(Bleep) ho or what? MC: (Laughs). MV: You his fuck(Bleep) bitch man, where you suck his dick every night? Dude, I do what I do. MC: Let's see in radio ratings, where is he, where are you? MV: Well, dude, look it, you're trying to get me in a battle with Howard. He's going to do mornings on my, on the same station I'm on, number one. MC: Right. MV: Number two, I respect Howard dude. The guy's broken down doors for me. MC: Then don't rip him off. MV: I'm not ripping him off, idiot. MC: You are ripping him off. MV: Dude, clean your ears out buddy. I'm not ripping anybody off, I do what I do. MC: You know. MV: Why don't you go out, go out in the corner, go out on Broad Street. Are you in Providence? Go out on Broad Street. MC: (Unintelligible). WWKX-FM 2. MV: Suck some di(Bleep)ck make some money for Howard and pay your pimp okay? MC: Alright. MV: I got to go bitch. (Dial tone). (Laughs). Oh God. Guy's going to be at the mall waiting for me probably, right? I bet you that was one of Howard's, one of Howard's bitches alright. You know how they call, told they call Regis and Cathy Lee. Ba-ba-booie, they do those phone calls. I love those. But he's call, what an idiot. He's calling me, I'm, you know what I'm saying? We're going to be on the same station so, whatever. That's going to do it for the Real Deal Mike Neil, we shall reunite tomorrow afternoon now, now in the afternoon, this station has lost their mind putting me on in the, Becky Boo, you drunkard, you lush, you're worse than the FAX angel used to be. FV: (Laughs). MV: No, nobody could be that bad, right? Alright listen, tomorrow afternoon at four it's up to management of course, management willing, till then don't do anything I wouldn't do, if you do tell me about it, name it after me or better yet bring along a glove, (Unintelligible) the negative has got to go, throw it out. (Spitting sound). Be positive, it's contagious and be good or be with me and always keep it on the brand new radio place to be, this station heating up southern New England, the all new (Shouting) the all new, brand spanking new, new, all new, one, the all new hot one (Woman's voice apparently having orgasm) oh, oh, oh, oh, oh, oh, oh, oh, oh six. Till tomorrow afternoon at four, see, I do what I do, I've always done what I do, (Kissing sounds). Ciao baby. * *