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


In the Matter of                  )
                                 )
                                 )
Rubber City Radio Group           )   File No. EB-02-IH-0064
                                 )   NAL/Acct. No. 200232080019
Licensee of Station WONE-FM       )   FRN 0002-9338-77
Akron, Ohio                       )   Facility ID # 43873
                                 )
                                 )


         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:   August 1, 2002               Released:  August 2, 
2002

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.   In   this  Notice   of   Apparent  Liability   for 
Forfeiture (``NAL''),  we find that Rubber  City Radio Group 
of Akron, Ohio (``Rubber  City''), licensee of Station WONE-
FM, apparently  violated 18  U.S.C.  1464  and 47  C.F.R.  
73.3999, by willfully broadcasting indecent language.  Based 
upon our review of the facts and circumstances in this case, 
we  conclude that  Rubber City  is apparently  liable for  a 
forfeiture in the amount of seven thousand dollars ($7,000).

                      II.   BACKGROUND

     2.   The Commission  received a complaint  that WONE-FM 
broadcast indecent  material on  November 29, 2001,  at 8:30 
a.m. during  the ``Morning Show'' program.   The complainant 
alleges  that during  a segment  featuring the  Morning Show 
host  and  a guest  from  an  MTV television  show  entitled 
``Jackass,''  she  heard  the following  exchange:  (Guest):  
``I've got a joke - what do you get when you stick a butcher 
knife up a  baby's ass?''  (Host): ``I don't know  - what do 
you  get?''  (Guest):  ``A mean  hard on.''  The complainant 
also alleges  that, following this exchange,  there was much 
laughter  and  joking  by the  radio  personalities.   After 
reviewing the  complaint, we issued  a letter of  inquiry to 
the licensee. 

     3.   In response to our  letter of inquiry, Rubber City 
states that, although  WONE-FM does not have  a recording of 
the allegedly  indecent broadcast,  it does not  dispute the 
complainant's  characterization of  the dialogue.   Nor does 
Rubber City dispute the fact  that it broadcast the dialogue 
between the  hours of 6  a.m. and 10 p.m.   Moreover, Rubber 
City asserts  that it does  not condone indecent  or obscene 
programming.  Indeed, Rubber City acknowledges that the host 
should have anticipated the need to use a time-delay device, 
based on the known background of the guests and the tenor of 
the  comments  the  guests  made  prior  to  the  challenged 
dialogue.1  Nevertheless,  Rubber City claims that  the host 
did not know  where the ``joke'' was going  and submits that 
the dialogue  was merely  a ``fleeting reference,''  i.e., a 
spontaneous utterance in the context of a live program.

                      III.  DISCUSSION

     4.   It  is a  violation  of federal  law to  broadcast 
obscene or indecent programming.   Specifically, Title 18 of 
the United  States Code,  Section 1464  (18 U.S.C.   1464), 
prohibits  the  utterance  of  ``any  obscene,  indecent  or 
profane   language  by   means  of   radio  communication.''  
Congress has given the Federal Communications Commission the 
responsibility  for administratively  enforcing 18  U.S.C.  
1464. In doing  so, the Commission may,  among other things, 
impose a monetary forfeiture,  pursuant to Section 503(b)(1) 
of  the  Communications  Act  (the  ``Act''),  47  U.S.C.   
503(b)(1), for  broadcast of indecent material  in violation 
of 18 U.S.C.  1464.   Federal courts have upheld Congress's 
authority  to  regulate obscene  speech  and,  to a  limited 
extent,  indecent speech.   Specifically,  the U.S.  Supreme 
Court has determined that obscene  speech is not entitled to 
First  Amendment  protection.    Accordingly,  Congress  may 
prohibit the broadcast  of obscene speech at  any time.2  In 
contrast, federal  courts have held that  indecent speech is 
protected by the First Amendment.3  Nonetheless, the federal 
courts  consistently  have  upheld Congress's  authority  to 
regulate the  broadcast of indecent  speech, as well  as the 
Commission's  interpretation   and  implementation   of  the 
statute.4   The  First  Amendment, however,  is  a  critical 
constitutional limitation that demands we proceed cautiously 
and   with  appropriate   restraint.5   Consistent   with  a 
subsequent  statute and  case law,6  under the  Commission's 
rules,  no  radio  or television  licensee  shall  broadcast 
obscene material at any time, or broadcast indecent material 
during the  period 6 a.m. through  10 p.m.  See 47  C.F.R.  
73.3999.

     5.   In  enforcing its  indecency rule,  the Commission 
has  defined  indecent speech  as  language  that first,  in 
context, depicts or describes  sexual or excretory organs or 
activities.   Second,  the   broadcast  must  be  ``patently 
offensive  as measured  by  contemporary  standards for  the 
broadcast  medium.''  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).   As noted  above, 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).  

     6.    The dialogue set out in the complaint refers to a 
child's excretory  organ and  to sexual  activity associated 
with that  child.  Thus, this material  warrants scrutiny in 
order  to determine  whether it  is patently  offensive.  In 
making  this determination,  three factors  are particularly 
relevant:   (1) the  explicitness or  graphic nature  of the 
description; (2)  whether the material dwells  on or repeats 
at  length descriptions  of  sexual or  excretory organs  or 
activities; and  (3) whether the material  appears to pander 
or  is used to  titillate or  shock.  See  In the  Matter of 
Industry Guidance On the  Commission's Case Law Interpreting 
18  U.S.C.     1464  and  Enforcement   Policies  Regarding 
Broadcast Indecency (``Indecency Policy Statement''), 16 FCC 
Rcd 7999 (2001). 

     7.   With respect to the first key factor, we find that 
the  language of  the  dialogue is  a  graphic and  explicit 
depiction of  sexual activity with an  infant.  The dialogue 
graphically depicts a sadistic  act of simulated anal sodomy 
with an  infant and  explicitly discusses a  person's sexual 
arousal in response to  that act.  Furthermore, with respect 
to the third factor, the sexual references appear to be used 
to  shock  and  are  similar  to  other  patently  offensive 
material  involving graphic  references  to sexual  activity 
with  children, which  were  found to  be indecent.7   Under 
these  circumstances,  we  need  not find  that  the  sexual 
references were repeated at  length, which is relevant under 
the second  factor, in  order to find  that the  material is 
patently  offensive.   As  noted  in  the  Indecency  Policy 
Statement, broadcasting references to sexual activities with 
children, even if relatively fleeting, may be found indecent 
where, as  here, other  factors contribute  to a  finding of 
patent  offensiveness.8  Thus,  we  find  that the  material 
broadcast on WONE-FM, in  context, was patently offensive as 
measured by contemporary community  standards.  We also find 
that the indecent dialogue was  broadcast at 8:30 a.m., when 
there was a  reasonable risk that children may  have been in 
the audience, and thus is legally actionable.   

     8.   We are  not persuaded by Rubber  City's claim that 
the host  was unaware  of the  dialogue's sexual  import.  A 
licensee is responsible for  the programming of its station.  
Mr. Steve Bridges,  9 FCC Rcd 1681 (MMB  1994)(a licensee is 
ultimately  responsible for  the programming  it broadcasts, 
regardless  of the  source  of  the programming);  Community 
Broadcasters, Inc.,  55 FCC 2d  28, 35 (1975)(a  licensee is 
responsible for material broadcast  over its station and may 
not avoid liability for a violation by pleading ignorance of 
what was broadcast).   The failure of Rubber  City's host to 
edit a guest's indecent material, especially where, as here, 
the host was aware of the questionable nature of the guest's 
material and could  have used a time-delay  device, does not 
relieve  Rubber City  of  liability.   Accordingly, for  the 
reasons discussed above, we find  that on November 29, 2001, 
WONE-FM apparently violated the  prohibitions in the Act and 
the Commission's rules against broadcast indecency.  

     9.   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  Commission's 
rules.9  Because Rubber City elected not to edit its guest's 
indecent  dialogue, it  appears that  Rubber City  willfully 
violated  18  U.S.C.    1464 and  section  73.3999  of  the 
Commission's rules, by airing  indecent programming on WONE-
FM between the hours of 6 a.m. and 10 p.m. 

     10.  The Commission's Forfeiture  Policy Statement sets 
a  base  forfeiture amount  of  $7,000  for transmission  of 
indecent/obscene   materials.10    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.''11  After reviewing all of  the circumstances, 
we believe a  $7,000 forfeiture is appropriate  in this case 
for the apparent broadcast of indecent material.  

                    IV.  ORDERING CLAUSES

     11.  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,12 
that  Rubber City  Radio  Group is  hereby  NOTIFIED of  its 
APPARENT  LIABILITY FOR  FORFEITURE in  the amount  of seven 
thousand dollars ($7,000) for  willfully violating 18 U.S.C. 
 1464 and section 73.3999 of the Commission's rules.

     12.   IT  IS FURTHER ORDERED, pursuant  to section 1.80 
of the  Commission's rules, that  within thirty days  of the 
release  of this  Notice,  Rubber City  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  MUST INCLUDE the FCC  Registration Number (FRN) 
referenced  above, and  also 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. 20554.13

     17.  IT IS FURTHER  ORDERED that a copy  of this Notice 
shall be  sent, by Certified Mail/Return  Receipt Requested, 
to Rubber City Radio Group,  1795 West Market Street, Akron, 
Ohio 44313, and to Rubber  City's counsel, Erwin G. Krasnow, 
of  Shook, Hardy  &  Bacon LLP,  Hamilton  Square, 600  14th 
Street, N.W., Suite 800, Washington, D.C.  20005-2004. 

                         FEDERAL COMMUNICATIONS COMMISSION


     
                         David H. Solomon
                         Chief, Enforcement Bureau
  





_________________________

     1  According to  a WONE-FM  employee, the  ``Jackass'' 
guests have a reputation  for being ``rebellious'' and have 
a penchant  for ``get[ting]  a rise  out of  people.''  See 
letter  dated February  21,  2002, from  Erwin G.  Krasnow, 
Shook, Hardy &  Bacon, L.L.P., counsel for  Rubber City, to 
Charles  W.  Kelley,  Chief,  Investigations  and  Hearings 
Division,   Enforcement   Bureau,  Federal   Communications 
Commission.

     2  Sable  Communications of  California, Inc.  v. FCC, 
492  U.S. 115  (1989); Miller  v. California,  413 U.S.  15 
(1973), rehearing denied, 414 U.S. 881 (1973). 

     3  Sable  Communications of  California, Inc.  v. FCC, 
supra note 2, 492 U.S. at 126.  

     4  FCC  v. Pacifica  Foundation, 438 U.S.  726 (1978).  
See also Action for Children's  Television v. FCC, 852 F.2d 
1332,  1339  (D.C.  Cir.  1988)  (``ACT  I'');  Action  for 
Children's  Television v.  FCC, 932  F.2d 1504,  1508 (D.C. 
Cir.  1991),  cert denied,  112  S.Ct.  1282 (1992)  (``ACT 
II''); Action for Children's Television v. FCC, 58 F.3d 654 
(D.C. Cir. 1995), cert denied,  116 S.Ct. 701 (1996) (``ACT 
III'').

     5 ACT I,  supra note 4, 852 F.2d  at 1344 (``Broadcast 
material that is  indecent but not obscene  is protected by 
the  first amendment;  the FCC  may regulate  such material 
only with due  respect for the high  value our Constitution 
places  on  freedom  and  choice in  what  people  say  and 
hear.'').  See also United  States v. Playboy Entertainment 
Group, Inc., 529 U.S. 803, 813-15 (2000).

     6  Public Telecommunications Act  of 1992, Pub. L. No. 
356, 102nd Cong., 2nd Sess. (1992); ACT III, supra note 4.

     7  Citicasters Co.(KSJO(FM)),  15  FCC  Rcd 19091  (EB 
2000)(``joke'' that includes  patently offensive references 
to incest and  sex with children); Tempe  Radio, Inc (KUPD-
FM),  12  FCC  Rcd   21828  (MMB  1997)(patently  offensive 
language referring to sexual activity with a child); EZ New 
Orleans,   Inc   (WEZB(FM)),   12   FCC   Rcd   4147   (MMB 
1997)(patently  offensive references  to incest  and sexual 
activity with an infant).

     8 Indecency Policy Statement, 16 FCC Rcd at 8009.

     9 See Southern California  Broadcasting Co., 6 FCC Rcd 
4387 (1991).

     10  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.  1.80(b).

     11 Forfeiture Statement, 12 FCC Rcd at 17110.

     12 47 C.F.R.  0.111, 0.311 and 1.80.

     13 See 47 C.F.R.  1.1914.