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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )  File No. EB-00-IHD-0079
The KBOO Foundation             )  NAL/Acct.             No. 
200132080056 
                                )  Facility ID # 65755
Licensee of Noncommercial Educational   ) 
Station KBOO-FM, Portland, OR   )

         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  May 14, 2001               Released:   May  17, 
2001

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for 
Forfeiture ("NAL"), we find that The KBOO Foundation, 
licensee of noncommercial Station KBOO-FM, Portland, Oregon, 
apparently violated 18 U.S.C.  1464 and 47 C.F.R.  
73.3999, by willfully broadcasting indecent language.  Based 
on our review of the facts and circumstances in this case, 
we conclude that The KBOO Foundation is apparently liable 
for a forfeiture in the amount of seven thousand dollars 
($7,000).

                       II.  BACKGROUND

     2.   The Commission received a complaint alleging that 
KBOO-FM broadcast indecent material on October 20, 1999 
between 7:00 p.m. and 9:00 p.m. during the ``Soundbox.''  
The complainant submitted a tape containing allegedly 
indecent material that aired on the ``Soundbox'' on this 
date.  After reviewing the complainant's tape, we issued a 
letter of inquiry to the licensee.

     3.   In its response, The KBOO Foundation argues that 
the material is not indecent, and that no sanction is 
warranted.  In this regard, The KBOO Foundation states that 
the ``Soundbox'' program features contemporary rap and hip 
hop music often structured around themes that provide a 
larger social or cultural context, to explore, for example, 
topics such as ``violence, racial oppression or the judicial 
system.''  The KBOO Foundation asserts that it ``broadcasts 
rap and hip hop music not to achieve commercial success, but 
to fulfill its mission of `providing a forum for unpopular, 
controversial neglected perspective on important local, 
national, and international issues,''' and to ``reflect the 
diverse cultures we serve.'' The KBOO Foundation also has 
supplemented its response by submitting declarations of the 
author of the lyrics of the allegedly indecent song cited in 
the complaint and of a professor at a local university.  
These declarations are offered in support of The KBOO 
Foundation's argument that, in context, the material 
allegedly broadcast on KBOO-FM is not indecent.  In 
addition, The KBOO Foundation states that it provides 
training to its local programmers, most of whom are unpaid 
volunteers, concerning the Commission's rules and the 
station's policies, including its prohibitions against the 
broadcast of indecent material.  The KBOO Foundation 
supplement also includes a petition signed by listeners who 
support the ``Soundbox.''  

     4.   The KBOO Foundation asserts, in the alternative, 
that the complaint should be dismissed based on the amount 
of time that has elapsed since the allegedly indecent 
material was broadcast.  The KBOO Foundation states that it 
cannot determine with certainty whether it aired the 
allegedly indecent material cited in our letter of inquiry.  
However, The KBOO Foundation has determined that its music 
library contains the song ``Your Revolution'' that was 
excerpted in our letter of inquiry. 

                      III.  DISCUSSION

     5.   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 
     forfeiture penalty.

18 U.S.C.  1464 provides criminal penalties for anyone who 
``utters any obscene, indecent or profane language by means 
of radio communication.''  As explained below, we believe 
that ``Your Revolution'' contains indecent material and that 
the licensee's broadcast thereof was willful.
 
     6.   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.  

     7.   After carefully considering the record before us, 
it appears that KBOO-FM has willfully violated our indecency 
rule with respect to the broadcast of ``Your Revolution.'' 
The KBOO Foundation points to the length of time that has 
elapsed since the broadcast that is the subject of the 
complaint, and argues that it cannot determine whether the 
song aired on the date and time alleged, or whether it might 
have aired an edited version of the song. In this regard, 
the station does not possess tapes or transcripts of the 
``Soundbox'' for the date in question. However, the KBOO 
Foundation does not claim that tapes or transcripts are 
generated and retained, or that this material would have 
been available earlier. The KBOO Foundation acknowledges 
that the station's music library contains the song, and has 
provided a transcript of the lyrics of ``Your Revolution.'' 
Although the KBOO Foundation asserts that an edited version 
of the song may have been broadcast, it does not indicate 
that the station possesses such an edited version of ``Your 
Revolution.''  Moreover, the tape of the October 20, 1999 
``Soundbox'' submitted by the complainant contains the 
unedited version of  ``Your Revolution,'' which corresponds 
to the transcription included in The KBOO Foundation's 
response.   

     8.   The rap song ``Your Revolution'' contains 
unmistakable patently offensive sexual references.  We have 
considered The KBOO Foundation's arguments concerning the 
context of this material.  Specifically, the KBOO Foundation 
asserts that the rap song ``Your Revolution'' cannot be 
separated from its contemporary cultural context.  In the 
alternative, The KBOO Foundation argues that even if context 
is limited to the song's lyrics, ``Your Revolution'' is ``a 
feminist attack on male attempts to equate political 
`revolution' with promiscuous sex'' and as such, is not 
indecent. However, considering the entire song, the sexual 
references appear to be designed to pander and shock and are 
patently offensive.  In this regard, we reject The KBOO 
Foundation's argument that it is erroneous, as a matter of 
law, to find that the song is indecent without considering 
the artistic merit of the rap music genre. Merit is one of 
the variables that are part of the material's context, and 
the Commission has rejected an approach to indecency that 
would hold that material is not per se indecent if the 
material has merit.1  The contemporary social commentary in 
``Your Revolution'' is a relevant contextual consideration, 
but is not in itself dispositive.2   The Commission 
previously has found similar material to be indecent, and we 
see no basis for finding otherwise in this case.3  In 
addition, although The KBOO Foundation has submitted a 
petition signed by listeners who support the  ``Soundbox,'' 
we have previously ruled that neither the statute nor our 
case law permits a broadcaster to air indecent material 
merely because it is popular.4 
            
     9.   Section 503(b) of the Act and 47 C.F.R.  1.80 
both state that any person who willfully or repeatedly fails 
to comply with the Act or the Commission's rules shall be 
liable for a forfeiture penalty.  For purposes of 47 U.S.C. 
 503(b), the term ``willful'' means that the violator knew 
that it was taking the action in question, irrespective of 
any intent to violate the Commission's rules.5  In assessing 
a forfeiture, we take into account the nature, 
circumstances, extent and gravity of the violation, and, 
with respect to the violator, the degree of culpability, any 
history of prior offenses, ability to pay, and such other 
matters as justice may require.6  

     10.       The Commission's Forfeiture Guidelines set a 
base forfeiture amount of $7,000 for transmission of 
indecent material.7  After considering all the facts and 
circumstances, we believe the base forfeiture amount is the 
appropriate sanction for the violation described above and 
that neither an upward nor downward adjustment should be 
made. 

                    IV.  ORDERING CLAUSES

     11.  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, The 
KBOO Foundation is hereby NOTIFIED of its APPARENT LIABILITY 
FOR A FORFEITURE in the amount of seven thousand dollars 
($7,000) for willfully violating 18 U.S.C.  1464 and 47 
C.F.R.  73.3999. 

     12.  IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. 
 1.80, within thirty days of this NOTICE OF APPARENT 
LIABILITY, The KBOO Foundation SHALL PAY the full amount of 
the proposed forfeiture or SHALL FILE a written statement 
seeking reduction or cancellation of the proposed 
forfeiture.

     13.  Payment of the forfeiture may 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.  
The payment should note the NAL/Acct. No. referenced above.

     14.  The response, if any, must be mailed to Charles W. 
Kelley, Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 445 
12th Street, S.W., Room 3-B443, Washington, D.C. 20554 and 
MUST INCLUDE THE NAL/Acct. No. referenced above.  

     15.  The Commission will not consider reducing or 
canceling a forfeiture in response to a claim of inability 
to pay unless the respondent submits: (1) federal tax 
returns for the most recent three-year period; (2) financial 
statements prepared according to generally accepted 
accounting practices (``GAAP''); or (3) some other reliable 
and objective documentation that accurately reflects the 
respondent's current financial status.  Any claim of 
inability to pay must specifically identify the basis for 
the claim by reference to the financial documentation 
submitted.  

     16.  Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.8  

     17.  IT IS FURTHER ORDERED THAT a copy of this NOTICE 
OF APPARENT LIABILITY shall be sent by Certified Mail Return 
Receipt Requested to: The KBOO Foundation,20 S.E. 8th Ave., Portland, Oregon 97214; with a copy to its 
counsel, John Crigler, Esq., Garvey, Schubert & Barer, 1000 
Potomac Street, N.W., Washington, DC  20007. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
                          ATTACHMENT

Radio Station:           KBOO-FM, Portland, Oregon
Date/Time Broadcast:     October 20, 1999, on the 
``Soundbox,'' between 7:00 p.m. and 9:00 p.m.
Material Broadcast:      ``Your Revolution''

(Various female voices)


Your revolution will not happen between these thighs
Your revolution will not happen between these thighs
Your revolution will not happen between these thighs
Will not happen between these thighs
Will not happen between these thighs
The real revolution ain't about bootie size
The Versaces you buys
Or the Lexus you drives
And though we've lost Biggie Smalls
Maybe your notorious revolution
Will never allow you to lace no lyrical douche in my bush
Your revolution will not be you killing me softly with 

fujees
Your revolution ain't gonna knock me up without no ring
And  produce little future M.C.'s 
Because that revolution will not happen between these thighs
Your revolution will not find me in the back seat of a jeep
With L.L. hard as hell, you know
Doing it and doing and doing it well, you know
Doing it and doing it and doing it well
Your revolution will not be you smacking it up, flipping it 

or rubbing it down
Nor will it take you downtown, or humping around
Because that revolution will not happen between these thighs
Your revolution will not have me singing
Ain't no nigger like the one I got
Your revolution will not be you sending me for no drip drip 

V.D. shot 
Your revolution will not involve me or feeling your nature 

rise 
Or having you fantasize
Because that revolution will not happen between these thighs
No no not between these thighs
Uh-uh
My Jamaican brother
Your revolution will not make you feel bombastic, and really 

fantastic
And have you groping in the dark for that rubber wrapped in 

plastic
Uh-uh
You will not be touching your lips to my triple dip of 
French vanilla, butter pecan, chocolate deluxe
Or having Akinyele's dream, um hum
A six foot blow job machine, um hum
You wanna subjugate your Queen, uh-huh
Think I'm gonna put it in my mouth just because you
Made a few bucks, 
Please brother please
Your revolution will not be me tossing my weave
And making me believe I'm some caviar eating ghetto 
Mafia clown
Or me giving up my behind 
Just so I can get signed
And maybe have somebody else write my rhymes
I'm Sarah Jones
Not Foxy Brown
You know I'm Sarah Jones
Not Foxy Brown
Your revolution makes me wonder
Where could we go
If we could drop the empty pursuit of props and the ego
We'd revolt back to our roots
Use a little common sense on a quest to make love
De la soul, no pretense, but
Your revolution will not be you flexing your little sex and 

status
To express what you feel
Your revolution will not happen between these thighs
Will not happen between these thighs
Will not be you shaking
And me, [sigh] faking between these thighs
Because the real revolution
That's right, I said the real revolution
You know, I'm talking about the revolution
When it comes,
It's gonna be real
It's gonna be real 
It's gonna be real
When it finally comes
It's gonna be real
_________________________

1   See Infinity Broadcasting Corporation of Pennsylvania, 
Memorandum Opinion and Order on Reconsideration, 3 FCC Rcd 
930, 932 (1987).

2   Id at 932-33.   The KBOO Foundation cites a case decided 
under Florida's criminal obscenity statute as support for 
its argument that material with artistic merit is not 
indecent.  Luke Records, Inc. v. Navarro,  960 F.2d 134 
(11th Cir. 1992), cert. denied, Navarro v. Luke Records, 
Inc., 506 U.S. 1022 (1992).  The court's determination that 
a lower court had not properly applied the tripartite 
obscenity standard of Miller v. California, 413 U.S. 15 
(1973), does not control our indecency analysis here. 

3   See Capstar TX Limited Partnership (WZEE(FM)), 16 FCC 
Rcd 901 (EB 2001); CBS Radio License, Inc. (WLLD(FM)), 15 
FCC Rcd  23881(EB 2000)(Notice of Apparent Liability for 
Forfeiture), DA 01-537 (EB Mar. 2, 2001)(Forfeiture Order).

4 See, e.g., CBS Radio License, Inc. (WLLD(FM)), supra.

5  See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern 
California Broadcasting Co., 6 FCC Rcd 4387 (1991). 

6  47 U.S.C.  503(b)(2)(D).  See also 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 Guidelines''). 

7  Forfeiture Guidelines, 12 FCC Rcd at 17113.   

8 See 47 C.F.R.  1.1914.