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

In the Matter of                )  File No. EB-00-IH-0261
Citicasters Co.                 )  NAL/Acct.             No. 
200132080027
                                )  Facility ID #18114
Licensee of Station KEGL(FM),   )  
Fort Worth, Texas               )

         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: March 30, 2001              Released:  April  3, 
2001

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that Citicasters Co. (``Citicasters''), 
licensee of Station KEGL(FM), Fort Worth, Texas, has 
apparently violated 18 U.S.C.  1464 and 47 C.F.R.  
73.3999, by willfully and repeatedly broadcasting indecent 
language.  Based on our review of the facts and 
circumstances in this case, we conclude that Citicasters is 
apparently liable for a forfeiture in the amount of fourteen 
thousand dollars ($14,000).

                       II.  BACKGROUND

     2.  The Commission received a complaint dated August 6, 
2000, concerning broadcasts that aired on KEGL on May 30, 
May 31, August 1 and August 3, 2000.  The complaint included 
transcripts and pictures taken from the station's website.  
Review of the complaint revealed that the May 30 broadcast 
occurred at 11 p.m., while the August 1 broadcast did not 
appear to raise a prima facie question of actionable 
indecency.  However, because the May 31 and August 3 
broadcasts contained apparently indecent material and aired 
between 7 p.m. and 10 p.m., we issued a letter of inquiry to 
the licensee.  

     3.  In its response, Citicasters asserts that it cannot 
verify whether the material aired.  However, the licensee 
does acknowledge that it admonished ``Kramer and Twitch,'' 
the hosts of the programs in question, following one of 
their shows in late May or early June because management 
believed that certain material may have been inappropriate 
for the station's audience.  With respect to the August 3 
broadcast, Citicasters argues that the material allegedly 
aired was not indecent.  Citicasters submits that, at worst, 
the material includes a ``few scattered and vague references 
of a sexual nature, ... [which] are neither explicitly 
graphic nor pandering.''  Citicasters claims that it has a 
formal policy prohibiting the broadcast of indecent 
material; that KEGL's management routinely advises the 
station's on-air staff of the policy; and that it 
``vigilantly'' monitors the station's broadcasts for 
compliance.  Citicasters also notes that, beginning in 
December 2000, KEGL began airing the ``Kramer and Twitch'' 
program on a 12-hour delayed basis.  Citicasters explains 
that, currently, the program is taped in San Jose, 
California, and then reviewed and edited by KEGL personnel 
prior to being broadcast by the station.  In addition, KEGL 
regularly airs a message both before and after the ``Kramer 
and Twitch'' show, which notifies listeners that the program 
may contain material ``more suitable for adults.'' 
                      III.  DISCUSSION

     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 
     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 language broadcast during the May 31 and August 3 
programs of ``Kramer and Twitch'' was indecent and that the 
licensee's broadcast of that material was willful.  

     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.  After carefully considering the record before us, 
it appears that Citicasters has willfully and repeatedly 
violated our indecency rule.  Citicasters does not deny that 
it broadcast the language in question before 10 p.m.  The 
May 31 broadcast contains dialogue between the hosts and a 
teenage female caller, wherein, among other things, the 
hosts and the caller discuss bisexuality and masturbation, 
and the hosts attempt to have the caller masturbate during 
the course of the conversation.  The tone of the 
conversation is pandering and titillating in that the hosts 
persistently inquire about the caller's frequency and 
methods of masturbation, and they assert that the caller's 
father masturbates despite his apparent disapproval of her 
doing so.  As for the August 3 broadcast, we disagree with 
Citicasters' contention that indecent language was not 
aired.  That broadcast features a conversation between the 
hosts and an adult film actor and actress.  Among other 
things, they discuss whether the actor's girl friend is 
bisexual, whether the actress enjoys anal sex, and whether 
the actress will perform a sexual act on one of the hosts 
whose penis is ``uncut.''  Once again, the tone of the 
conversation is pandering and titillating.  It appears that 
both broadcasts were indecent in that they contain patently 
offensive descriptions of various sexual activities.1  The 
licensee's stated policy against the broadcast of indecent 
material apparently had no impact on the airing of the cited 
material, and its current procedures for editing ``Kramer 
and Twitch'' and advising audiences about its content have 
no bearing on whether a forfeiture should be imposed.  See 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).       

     7.  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.2  As explained 
above, Citicasters knew that it was broadcasting ``Kramer 
and Twitch'' and each of the cited segments.  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.3  

     8.  The Commission's Forfeiture Guidelines set a base 
forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.4  After considering all the 
facts and circumstances, we believe the base forfeiture 
amount is the appropriate sanction for each of the two 
violations described above and that neither an upward nor 
downward adjustment should be made. 

                    IV.  ORDERING CLAUSES

     9.  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, 
Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY 
FOR A FORFEITURE in the amount of fourteen thousand dollars 
($14,000) for willfully and repeatedly violating 18 U.S.C.  
1464 and 47 C.F.R.  73.3999. 

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

     11.  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.

     12.  The response, if any, must be mailed to the 
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.  

     13.  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.  

     14.  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. 20554.5  

     15.  IT IS FURTHER ORDERED THAT a copy of this NOTICE 
OF APPARENT LIABILITY shall be sent by Certified Mail Return 
Receipt Requested to Citicasters Co., c/o Kenneth E. Wyker, 
General Counsel, Clear Channel Communications, Inc., 200 
East Basse Road, San Antonio, Texas 78209-8328; with a copy 
to Elizabeth E. Goldin, Esq., Wiley, Rein & Fielding, 1776 K 
Street, N.W., Washington, D.C. 20006. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
                         ATTACHMENT

Radio Station:      KEGL(FM), Fort Worth, Texas
Date/Time Broadcast:     (1) May 31, 2000 at 9 p.m.; (2) 
               August 3, 2000 between 7:45 p.m. -  9:15 p.m.
Material Broadcast: (1) Telephone conversation; (2) 
Interview and commentary

(1)  May 31, 2000 (9 p.m.)

MV:  Male Voice(s) (Hosts)
FV:  Caller
Boy: Caller's brother

MV:  So you say you're 17 and your parents won't let you 
listen to us?  Huh?

FV:  Yeah, because my dad is like a bishop in my church, and 
so he thinks you guys are evil.

MV:  Are you really 17?  What year were you born?

FV:  1983.

MV:  I guess that's right.  Well, 17, technically, is the 
legal age of consent.  So you really don't need his 
permission to listen to a radio show.

FV:  True.  But I still live under his house and so he could 
kick me out.

MV:  What does he say about the show that he doesn't like?

FV:  He says it will put evil thoughts in my head and stuff.

MV:  What kind of evil thoughts do we put in your head?  
Have you been thinking about sex?

FV:  Well, you guys had that girl on who like wanted to get 
off on another girl.

MV:  Did that turn you on?  Any of that?

FV:  Yeah.

MV:  Do you think you're bi-sexual in any way?

FV:  Maybe.  And that's why he doesn't like it.

MV:  Are you a virgin?  Yes?

FV:  Yeah.

MV:  So your dad blames us.  And you may be bi-sexual, 
right?

FV:  He doesn't say that, but he says that the whole pre-
marital sex thing is evil.

MV:  Of course.  Of course, he thinks that.  You should be 
able to make your own decisions.  You're 17 years old, and 
if you wanted to have sex with one of us you could do that 
legally.  We could have sex with you.  And I think we should 
just because of her father.  
     How many times a week do you masturbate?  How many 
times?

FV:  Probably about four or five.

MV:  How do you do it?

FV:  It's private.

MV:  Do you put your finger in or do you move it around?  Do 
you use a vibrator?  Where do you masturbate?  In the 
shower?

FV:  In my room, usually.

MV:  How do you do it?

FV:  I get on my back and start touching myself.

MV:  How?  It's okay.  Really, you can tell us.  Do you ever 
touch yourself through your panties?  You know, just on the 
outside to get yourself revved up.  Describe the whole 
thing.  I want to hear it.  Just tell me little details.  
First of all, tell me, do you shave?

FV:  Yes, but that's because my cousin taught me how to.

MV:  Who taught you how?  Is it a female or a guy?

FV:  Well, she told me you kind'a have to because when guys 
are down there they don't want to ... so.

MV:  So it's shaved and bald.  What do you do when you 
masturbate?  Ah, this is turning me so on.  Who do you think 
about?

FV:  I do it like under the water thing.

MV:  In the bathtub?  Do you do that?

FV:  It was really ...

MV:  Nice?  What do you sound like when you have an orgasm?  
Moan?

FV:  Hmm.  Well, actually quiet so that my parents don't 
hear.

MV:  Your father would get mad if he thought you were 
masturbating?

FV:  He walked in on me one time.

MV:  Oh, God!  What I would do to walk in on you 
masturbating, no doubt!  What did he do to you?

FV:  He made me read every single Scripture that ....

MV:  What do you look like, sweetie?

FV:  Tall, thin.

MV:  How much do you weigh?

FV:  Probably 145.

MV:  So what do the Scriptures say about masturbating?

FV:  He gave me the one about David and Bathsheba.  He had 
unclean thoughts about her bathing.  And then he goes into 
the book of Romans.

MV:  Can I tell you something about your dad real quick, 
honey?  And I am going to be painfully honest.  He's been 
whacking off since he was 12 years old.  Yes he has.  He 
does it every single night whether he has sex with your mom 
or not.  He thinks about other women besides your mom.

FV:  I know that my father and mom still do because she's 
been pregnant recently.

MV:  So he still masturbates.  A guy always masturbates.  So 
how do you feel when we tell you your dad masturbates?  Is 
that gross?

FV:  I don't want to think about that.

MV:  He's probably twisting them off in the bathroom right 
now.  
Have you every kissed a girl?

FV:  No.

MV:  Have you every wanted to?

FV:  Yeah.

MV:  When you are hanging out with your girlfriends, have 
you ever fantasized about going back to their house and 
having a sleepover?

FV:  My freshman year in high school there was a girl who 
told me she liked me, and we were going to have a sleepover 
but my dad met her ....

MV:  That son-of-a-bitch!  That bastard!  That a-hole!  
Do you have a car?

FV:  On the weekends.

MV:  Tell you what.  We'll let you come up here, and we'll 
find a really attractive woman that you can sleep with.  
Would you masturbate in front of us?

FV:  Uhm, I don't know.

MV:  Why not?  You're 17.  That's not crazy!  You're totally 
legal.  I think we could get you up here.  I think we can 
get you to buzz your beaver in front of us.

FV:  I've never even like French-kissed a guy.

MV:  Oh well, of course, we'll take care of that!  We'll do 
that for the first time here.  We will corrupt you, baby!  
Hmmm.  You won't even want to go home after this.  You know 
what?  You will be tearing pages out of your daddy's Bible.  
You're 17.  You'll be smoking them!  You're 17.  You're 
legal.  You can do whatever you want.  
Are you a little turned on right now?

FV:  Well, yeah.

MV:  Would you masturbate on the phone for us?

FV:  I don't know.

MV:  Just do it a little bit.  Now, we are going to turn off 
the microphone and be real quiet.  We want to hear you moan.  
Go ahead.  Go ahead.

FV:  I'm going to be embarrassed.

MV:  Go ahead, baby.  Don't worry.  It's kind of erotic.  
The mikes are off.

FV:  I like quietly whimper.

MV:  That's cool.  Just do it, and we're turning the mikes 
off right now.

FV:  Okay.  Bye-bye.  
Colt, are you on the phone?

Boy: Hello.  Yeah.

FV:  Get off the phone!

MV:  Oh my God!  Hey, Kenneth, are you the brother?

Boy: Uh-huh.

MV:  Do you ever watch her at night while she's 
masturbating?

FV:  Don't say that!

Boy: Do what?

FV:  Don't say that!  Don't say that!

MV:  God [bleep] son-of-a-bitch!  Whore!  [Beep] sucker!  
She's dogging her vagina every single night with your dad's 
flashlight!

FV:  Hang up the phone!

MV:  God [beep]!  God [beep]!  You're going to hell!  You're 
a sinner!  I can't believe you're pregnant, you bitch!  
You're a whore!

FV:  Hang up the phone!

Boy:      What kind of [unintelligible] is this?

MV:  [Laughter]

Announcer:     Extreme night-time radio with Kramer and 
Twitch on 97.1, the Eagle.


(2)  August 3, 2000 (7:45 p.m. to 9:15 p.m.)

MV:  Male Voice(s) (Hosts)
MV2: Adult-film actor (Carlos)
FV:  Adult-film actress (Gina)
MV3: Hosts' assistant (Frat)

MV:  Carlos is on the way and porno chicks.

...

MV:  We also have Gina Rider.  She's a porn star.  She's 
going to be performing at the Clubhouse.
9:30 your first show, right?

FV:  Yes, and midnight.

MV:  You've done a couple hundred adult films, almost 200.  
You're from San Antonio.  You've got a boyfriend?

FV:  Nooooooooo.

MV:  Are you having sex with us?

FV:  Who?

MV:  If she says no, it's a joke.  If she says yes, let's do 
it!

MV:  So, Carlos, you're on the road all the time, especially 
with this tour.  How's your sex life?

MV2: Great!  It really is, dude.

MV:  Carlos, I know you, and you're so business-minded.  You 
don't drink.  I bet you don't bang chicks on the road.

MV2: No, I don't.

MV:  Do you have a girlfriend?

MV2: Remember that tall blonde, thin chick?

MV:  Is she hot?

MV2: Unbelievable, dude!

MV:  Is she Mexican?

MV2: No.  She's a white girl from Oregon.

MV:  Traitor!

MV2: Traitor?  What are you talking about, dude?
 
MV:  It's still pink in the middle.

MV2: Exactly!

MV:  You are faithful to her?

MV2: Yeah.  I may talk a lot of smack, dude, but you know.

MV:  Is she faithful to you?

MV2: I have no idea, dude.

MV:  Wait.  Now is a blow [beep] cheating?

MV2: I tell her this.  If you cheat on me, and it's a 
mistake, just don't tell me.

MV:  A mistake?  I fell on a penis.  It slipped and fell in 
....

MV2: If she slips and falls into a pair of hairy [beep].  
Just ignore it.  I don't need that phone call.

MV:  Is she in town now?  Is she touring with you?

MV2: She usually comes.  She took this week off.

MV:  Are you coming with us tonight?  We're going to the 
Clubhouse tonight.

MV2: Of course.  I'm getting in trouble.  She has friends 
here who are listening in to the show, and I am going to get 
a phone call.

MV:  Does she get angry when you go to a boob bar?

MV2: I don't know.  Sometimes.

MV:  Is she jealous?

MV2: Sometimes.  But she's freaky, though.  She fulfills 
those, like, you know ....

MV:  Threesomes?

MV2: She does some crazy stuff, dude.

MV:  Is she bi?  Does she monge?

MV2: No, no, no.  She don't do that.  It's hard enough to 
please one chick to do it well.  Am I right?  Hard enough to 
really please you and make you feel like ....  I'm talking 
about in real life.

MV:  You've even said it on your tape before.  Why is it 
when a woman doesn't have an orgasm, why is it my fault?  
It's not your fault!  It's not your fault, Carlos.  Come on!

MV2: I know it's not my fault.  But what I'm saying is it's 
hard to please one woman.

MV:  That's what the other bitch is for, Carlos!

MV2: Yeah, but then the talk after.  It's like bitch in 
stereo!  Oh my God, you didn't do it right!  And what about 
my left boob?  I would just kill myself, dude.

MV:  We're going to talk to Gina Rider.  Keep it on the 
Eagle.

[Music]

MV:  What do you look like, girl?  You are gorgeous, girl!  
Oh my God!  She sneezed and her boobs popped out.  She just 
said, ``I'm going to get naked.''  You can take off that 
dress if you want.

MV2: Very nice booty, man.  And she says she enjoys the back 
door action.

MV:  Oh, you do?

FV:  I love it!

MV:  For the first time?  You just had your first back door?

FV:  No.  I've been doing it in my personal life for about a 
year now.  But I just did my first scene on camera like two 
months ago.  It was great!

MV:  We're going to come back and see what happens here in 
the studio.  Mmm, mmm, mmm, delicious!

...

MV:  Who give a crap!  Frat boy is in his boxers right now.  
I have a feeling something is going to go down in here.  Are 
you willing to get naked, Frat?  Take them off.

MV3: I am not getting all the way butt naked.  I can't do 
that.

MV:  None of us guys want to see your peepee.  And she's 
seen tons of them.  I've got one, man.  Come on!

MV2: I'll pull it out just so you feel comfortable.

MV:  Frat, you'll go and whip it out in a bar and go and 
talk to people with your peepee out.

MV3: But I am usually like lit, dude, when I am doing that.

MV:  Puss, puss, puss!

MV2: I'll pull it out, and mine's got a hood on it.  How bad 
could yours be?

MV:  [To FV]     Cut or uncut, how do you like them?

FV:  I've been playing with cut, uncut, lately.  I've always 
had cut, and my [beep] buddy's uncut.

MV3: I'm uncut, baby!  I've got a chance!

MV:  I want to ask her to have sex with me, but I'm not in 
front of you because you're going to mess it up.  She might 
say, ``Yeah.''  But you, my friend, would screw it up!
O.K., so get naked, Gina.

MV2: Dude!  What is wrong with you, bro?

MV:  I just don't want someone that looks like you to sleep 
with her.  Look at her.  She is phenomenonally gorgeous.  It 
would hurt my feelings.

MV2: Ah, poor fatso!

FV:  We're all hanging out tonight, right?

MV:  All right, Gina.  Your new flick is ``Skin Tight,'' and 
you are 23, and you've been doing porno since you were how 
old?

FV:  21.

MV:  So, will you demonstrate on Frat?  You know, wrestlers 
have moves and stuff.  Porno stars have got to have 
something that they do that makes them special.  Frat, get 
naked!  
Do you have some kind of signature move that is yours like 
...
[To Frat]  Grab your ankles and like take off your pants.  
Don't be a pud!  Get naked!

MV3: Who's going hold the mike?

MV2: That's not your problem, dude.  You're a big fat puss!

MV:  You're going to get naked in front of a porn star.

MV2: What are you afraid of?  She's like a doctor.  She's 
seen it.

MV:  Gina, how far would you go with Frat in here?  He's a 
pretty good looking guy.  Nothing he's got is going to 
compare to anything you've seen before.  Nothing.  We've 
seen it.

FV:  I've got to see what he looks like.

MV:  Take it off, Frat!  Take it off!

MV2: Did you see that look of horror?

.... 
_________________________

1  See, e.g., Citicasters Co. (WXTB(FM)), 13 FCC Rcd 15381 
(Mass Media Bureau 1998).  See also Regent Licensee of 
Flagstaff, Inc. (KZGL(FM)), 15 FCC Rcd 17286 (Enforcement 
Bureau 2000).

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

3  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''). 

4  Forfeiture Guidelines, 12 FCC Rcd at 17113.   

5 See 47 C.F.R.  1.1914.