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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) Control No. EB-00-IH-
WLDI, Inc. ) NAL/Acct. No.
Licensee of Station WCOM(FM), )
Bayamon, Puerto Rico ) Facility ID # 54471
Adopted: May 9, 2001 Released: May 11,
By the Chief, Enforcement Bureau:
1. In this Order, we impose a forfeiture of $16,800
on WLDI, Inc. (``WLDI''), licensee of Station WCOM(FM),
Bayamon, Puerto Rico, for willful and repeated violations of
18 U.S.C. § 1464 and Section 73.3999 of the Commission's
rules, 47 C.F.R. § 73.3999. This action is taken pursuant
to 47 U.S.C. § 503(b)(1)(D) and 47 C.F.R. § 1.80(f)(4).
2. On October 1, 1999, Chancellor Media Corporation,
owner of WLDI, filed with the Commission an application to
transfer control of WLDI to the Spanish Broadcasting System
of Puerto Rico (``SBS''). WCOM(FM) broadcast the allegedly
indecent material that is the subject of this order on
October 18, 19 and 20, 1999. Just over one week later, on
October 29, 1999, the Commission staff granted Chancellor's
application. At all relevant times, WLDI was the licensee
3. On February 8, 2001, in WLDI, Inc., EB-00-IH-
0140a, Notice of Apparent Liability, DA 01-338 (rel. Feb. 8,
2001) (``NAL''), the Enforcement Bureau determined that
certain material broadcast over WCOM(FM) was apparently
indecent. We found that the language contained graphic,
patently offensive references to sexual activities or sexual
organs. We also found that the station broadcast the
material between 6 a.m. and 10 a.m. at a time when there was
a reasonable risk that children might be in the audience.
NAL at ¶ 8; see also 47 C.F.R. § 73.3999. The Commission's
forfeiture guidelines provide a base forfeiture for
indecency of $7,000.1 After considering all of the
circumstances, we proposed a forfeiture in the NAL of
$21,000 for the apparently willful and repeated broadcast of
indecent material on three occasions. NAL at ¶ 10.
4. Section 503(b)(1) of the Communications Act (the
``Act''), 47 U.S.C. § 503(b)(1), provides in pertinent part:
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection to have ---
(D) violated any provision of section 1304, 1343,
or 1464 of title 18, United States Code;
shall be liable to the United States for a
18 U.S.C. § 1464 provides criminal penalties for anyone who
``utters any obscene, indecent or profane language by means
of radio communication.''
5. The Commission has defined indecent speech as
language 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. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, 56 FCC 2d 94, 98
(1975), aff'd sub nom. FCC v. Pacifica Foundation, 438 U.S.
726 (1978). The Commission's authority to restrict the
broadcast of indecent material extends to 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). Current law holds that such times begin at 6
a.m. and conclude at 10 p.m. Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S.Ct. 701 (1996). Thus, to be actionably
indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and
before 10 p.m. See 47 C.F.R. § 73.3999.
6. WLDI's response to the NAL, submitted on March 12,
2001, asserts that the Commission should rescind or, in the
alternative, reduce the proposed forfeiture. Although WLDI
admitted that WCOM(FM) broadcast the apparently indecent
material, it contends that the Commission should rescind the
proposed forfeiture on the grounds that ownership of WLDI
changed following the indecent broadcast. We reject this
contention. Alternatively, WLDI argues that the $21,000
proposed forfeiture should be reduced on the grounds that
WLDI has no history of prior offenses. As explained more
fully below, we grant WLDI's request for a reduction.
7. We first reject WLDI's assertion that we should
rescind the forfeiture. Repeating an argument it made in
response to the inquiry letter, WLDI claims that SBS, the
current owner of WLDI, should not be held accountable for
WLDI's indecent broadcasts, given that the broadcasts
occurred prior to the time that SBS assumed control of WLDI.
As the Commission recently held ``[t]he fact that the
ownership of the company changed hands does not affect the
company's liability.'' EZ Sacramento, Inc., FCC 01-53 (Feb.
20, 2001), at ¶ 3. See also Winslow Communications, Inc.,
45 FCC 2d 662 (1974). Nothing in WLDI's response convinces
us that this Commission precedent is inapplicable to this
8. We also find unpersuasive WLDI's claim that the
Commission should rescind the proposed forfeiture because
the Commission is holding responsible an entity, Chancellor,
no longer in existence.2 In support, WLDI cites two recent
orders in which the Enforcement Bureau declined to assess a
forfeiture against the licensee of a station that broadcast
apparently indecent material where the NALs had issued.3 In
both cases, we declined to issue the forfeitures in part
because the licenses of the stations that were the subject
of the NALs had been assigned to new entities. In this
case, however, the holder of the station license has not
changed. Rather only ownership of the licensee corporation
has changed.4 WLDI argues that we would be punishing a non-
existent entity by proceeding with a forfeiture against it.
We do not accept this argument. Contrary to WLDI's
assertion, we are holding responsible WLDI, which has been
at all relevant times the licensee of WCOM(FM). Thus, we
are not finding liable a non-existent entity; rather we are
finding liable an existing licensee. We therefore decline
to rescind the forfeiture.
9. Finally, we grant WLDI's request to reduce the
forfeiture based on its overall history of compliance. We
find that the licensee WLDI has an overall history of
compliance with the Commission's rules. We therefore grant
WLDI's request for reduction of the forfeiture amount and
reduce WLDI's forfeiture to $16,800.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to 47
U.S.C. § 503(b) and 47 C.F.R. §§ 0.111, 0.311 and 1.80,
WLDI, Inc. SHALL FORFEIT to the United States the sum of
sixteen thousand eight hundred dollars ($16,800) for
willfully and repeatedly violating 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999.
11. Payment of the forfeiture shall be made by mailing
a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482,
within thirty days of the release of this Forfeiture Order.
See 47 C.F.R. § 1.80(h). The payment should note the
NAL/Acct. No. referenced above. If the forfeiture is not
paid within that time, the case may be referred to the
Department of Justice for collection pursuant to 47 C.F.R. §
12. IT IS FURTHER ORDERED THAT a copy of this
FORFEITURE ORDER shall be sent by Certified Mail Return
Receipt Requested to Allan G. Moskowitz, Kaye Scholer, LLP,
901 Fifteenth Street, N.W., Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17100-01 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
2 After the Commission staff approved the transfer of
control of WLDI, Chancellor Media became a subsidiary of
AM/FM, Inc., which then merged with Clear Channel
3 See In the Matter of Flambo Broadcasting, Inc., 15 FCC
Rcd 23,429 (EB 2000) (``Flambo'') and In the Matter of
Americom Las Vegas Ltd. Partnership, 15 FCC Rcd 13,550 (EB
4 We premised the declinations in these cases primarily
on the amount of time that had lapsed following the NAL,
noting that the approximately six years between the issuance
of the NAL and our decision not to proceed with the
forfeiture order represented a ``significant amount of