Click here for Microsoft Word Version
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) Control No. EB-00-IH-
WLDI, Inc. 00140a
Licensee of Station WCOM(FM) ) NAL/Acct. No.
Bayamon, Puerto Rico 200132080018
) ID # 54471
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 8, 2001 Released:
February 8, 2001
By the Chief, Enforcement Bureau
In this Notice of Apparent Liability for Forfeiture, we find that
WLDI, Inc., licensee of Station WCOM(FM), Bayamon, Puerto Rico,
has apparently willfully and repeatedly violated 18 U.S.C. § 1464
and section 73.3999 of the Commission's rules, 47 C.F.R. §
73.3999, by broadcasting indecent material. Based on our review
of the facts and circumstances in this case, we conclude that
WLDI, Inc. is apparently liable for a forfeiture in the amount of
twenty one thousand dollars ($21,000).
The Commission received a complaint alleging that Station
WCOM(FM), Bayamon, Puerto Rico, broadcast indecent material
during the Spanish language program, ``Morning Party'' (``El
vacilon de la Manana''), on October 18, 19, and 20, 1999, between
6:00 a.m. and 10:00 a.m. The complainant provided us with a
cassette recording of the broadcasts which we translated. A copy
of our translation of the material at issue is attached hereto.
We issued a letter of inquiry to WLDI, Inc., asking the licensee
whether it broadcast the material at issue and whether the
transcript (as translated) accurately reflected the material as
broadcast. WLDI, Inc. filed responses to our inquiry on October
17, 2000, and December 11, 2000.
WLDI, Inc. admits that Station WCOM(FM) broadcast the material at
issue during its ``Morning Party'' program. Further, WLDI, Inc.
states that it has reviewed the audio tape of the material
provided by the Commission and that its translation of the
material is ``substantially identical to the transcript provided
by the Commission.'' However, WLDI, Inc. is unable to confirm
the precise dates of the broadcasts.
WLDI, Inc. contends that it should not be held accountable for
the broadcasts in question, since there has been a transfer of
control of the licensee subsequent to the broadcasts. It asserts
that the new owner of the licensee, Spanish Broadcasting System
(``SBS''), takes ``no responsibility for the actions of the
station, its management or its employees'' at the time of the
alleged violations. WLDI, Inc.'s October 17, 2000, response.
Further, in its December 11, 2000, response, WLDI, Inc. states
that SBS ``reserves the right to challenge the staff's conclusion
that SBS was and/or is responsible for the operation of the
station at the time in question.''
WLDI, Inc. was the licensee of Station WCOM(FM) at the time of
the alleged violations, and remains the licensee today. It is
well established that, ``[t]he transfer of control of the stock
of the licensee corporation subsequent to the violations does not
excuse the licensee for the violations.'' See, Winslow
Communications, Inc., 45 FCC 2d 662, 663 (1974).
Section 503 of the Communications Act of 1934, as amended, 47
U.S.C. § 503, authorizes the Commission to impose forfeitures on
any person who knowingly violates the Act or our rules. Section
503(b)(1) of the Act provides in pertinent part:
Any person who is determined by the Commission, in
paragraph (3) or (4) of this subsection, to have . . .
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.
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 fact that control of the
licensee has changed hands, does not affect our ability to impose
a forfeiture or the company's liability for its actions.
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.
It appears that the broadcasts at issue are indecent because they
contain graphic, patently offensive discussions of sexual
activities or organs. The Commission previously found similar
material that contains unmistakable patently offensive references
to sexual activities to be indecent.1 Because the material aired
between 8 a.m. and 10 a.m., when there was a reasonable risk that
children may have been in the audience, it is legally actionable.
Thus, it appears that on or about October 18, 19, and 20, 1999,
WLDI, Inc., violated 18 U.S.C. § 1464 by airing indecent
programming on Station WCOM(FM).
Section 503(b) of the Act, 47 U.S.C. § 503(b), and Section
1.80(a) of the Commission's rules, 47 C.F.R § 1.80, both state
that any person who willfully or repeatedly fails to comply with
the provisions of the Act or the rules shall be liable for a
forfeiture penalty. For purposes of Section 503(b) of the Act,
the term ``willful'' means that the violator knew it was taking
the action in question, irrespective of any intent to violate the
The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $7,000 for transmission of indecent/obscene
materials.3 The Forfeiture Policy Statement also specifies that
the Commission shall adjust a forfeiture based upon consideration
of the factors enumerated in Section 503(b)(2)(D) of the Act, 47
U.S.C. § 503(b)(2)(D), such as ``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.'' 12 FCC Rcd at 17110. After reviewing all of the
circumstances, we believe a $21,000 forfeiture is appropriate in
this case for the apparent willful broadcast of indecent material
on three separate occasions. In determining the amount of the
forfeiture, we considered, but ultimately found insignificant,
the fact that there was a transfer of control of WLDI, Inc.
subsequent to the broadcasts in question.
III. ORDERING CLAUSES
ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111,
0.311, and 1.80 of the Commission's rules,4 that WLDI, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
amount of twenty one thousand dollars ($21,000) for willfully and
repeatedly violating 18 U.S.C. § 1464 and Section 73.3999 of the
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, WLDI, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
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.
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 DC 20554 and MUST INCLUDE the NAL/Acct. No. referenced
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.
Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.5
IT IS FURTHER ORDERED that a copy of this Notice shall be sent,
by Certified Mail/Return Receipt Requested, to WLDI, Inc.'s
counsel, Allan G. Moskowitz, Esq., Kaye, Scholer, Fierman, Hays &
Handler, LLP, The McPherson Building, 901 Fifteenth Street, N.W.,
Suite 1100, Washington, D.C., 20005-2327.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Radio Station: WCOM(FM)
Date/Time Broadcast: October 18, 19, and 20, 1999, during the
Between 6:00 a.m. and
Material Broadcast: Comments
Translated into English. Parentheticals are comments regarding
MV: Male Voice
M2: Second male voice
M3: Third male voice
M4: Fourth male voice
FV: Female voice
F2: Second female voice
October 18, 1999
M2 An autodidactic nut
FV I am autodidactic and a swallow addict ``tragadictona''
(made up word in Spanish)
M2 swallow addict ``tragadictona''
FV I also like to be ``joyera'' once in a while. (The word
``joyera'' implies anal sex.
However, its literary meaning is ``female jeweler.'')
MV: Are you also ``joyera''?
M2: ``Metele cáculo batería batería'' (Stick a battery into
me...meaning yes, she(he)
also likes anal sex)
FV But in addition my specialty are facials. (Double
entendre...meaning oral sex)
FV You didn't know that?
M2 Shave, she likes to shave
FV Oh baby give me a facial. You get a facial?
M2 shave, shave, shave
FV No, my love, your wife starts like this plash plash with
a cannon between two
Mountains and then after that comes shu shu shu shu
lots of cleansing milk.
October 19, 1999
MV And here, at the meteorological center we know him as
Chu. Talking faster
(laugh) Suck my Rod is a hurricane with winds that
are too strong. In addition it is
a two legged hurricane with two black balls of
clouds coupled to a buttock with
high winds (laugh) with high winds with buttock
shape. This buttocks grab every
faggot they find on the street
MV Accordingly we recommend to every gay, gay gigolo and
homosexual to stay
Home with their hurricane shutters because Suck My
Rod is category 28
hurricane, something never seen before. Something
never seen before. I
recommend that everybody stay home because we are
expecting it to arrive. If
José arrives Thursday this one arrives Friday around
5:00 for happy hour. This
has been presented by John Tuti Morales directly
from the national
meteorological center for the city of Miami.
M2 It's 6:55 there you had the most recent truth about our
weather conditions. Good
M4 ...and another group and I also wanted to say a joke.
MV Go ahead, get the monkeys ready, get the monkeys ready
M4 There were three ants on a girl's body, one of them says
she is going up to the
mountains where it's cool. Then the other two
decide to go each to a different
cave and talk the following morning. On the
following day one of them comes out
and says: Damn, up there it was cool. Then another
one said: Damn where I was
it was stinky. Then she asks the third one why she is all
stained. She replied:
Where I was there was this stick coming in and out,
in and out, then I called him
mother fucker and he spit me (monkey sounds).
October 20, 1999
MV What you like best to do?
FV Oral sex
MV Oral sex. And what you like best to be done to you?
FV O my god, to be sucked all over.
MV To be sucked all over, all over..all over
M2 She should buy a vacuum cleaner.
FV Raymond this is for you, take notes.
M2 She should buy a vacuum cleaner.
MV Raymond take note.
M2 Ask her if she swallows the melody when she sings.
MV Do you like to sing and do you swallow the melody?
FV I sing. I repeat I swallow the melody.
MV There it is
M2 ``Que clase de chicharrón ave María''(What a nugget, Hail
1 See e.g., WQAM License Limited Partnership, 15 FCC Rcd 2518
(2000), recon. denied, 15 FCC Rcd 15349 (2000).
2 See Southern California Broadcasting Co., 6 FCC Rcd 4387
3 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied 15 FCC
Rcd 303 (1999) (Forfeiture Policy Statement); 47 C.F.R. §
4 47 C.F.R. §§ 0.111, 0.311 and 1.80.
5 See 47 C.F.R. § 1.1914.