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

In the Matter of                 )
Entercom Seattle License, LLC    )    File No. EB-01-IH-0395
                                )    NAL/Acct. No. 200232080005
Licensee of Station KNDD(FM),    )    FRN 0003-2457-19
Seattle, Washington              )    Facility ID # 34530


Adopted:  January 25, 2002              Released:    January  28, 


By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),  we   find   that  Entercom   Seattle   License,   LLC 
(``Entercom''),   licensee   of   Station   KNDD(FM),    Seattle, 
Washington, apparently violated 18 U.S.C.  1464 and 47 C.F.R.   
73.3999,  by  willfully  and  repeatedly  broadcasting   indecent 
language.  Based upon our review  of the facts and  circumstances 
in this case, we conclude that Entercom is apparently liable  for 
a  forfeiture  in  the   amount  of  fourteen  thousand   dollars 

                        II.   BACKGROUND

     2.   The  Commission  received  a  complaint  that  KNDD(FM) 
broadcast indecent material on May 30, 31 and June 1, 2001.   The 
complainant described the material broadcast, and after reviewing 
the complaint, we issued a letter of inquiry to the licensee. 

     3.   Entercom submitted a response and included a transcript 
of the  material at  issue  in the  complaint.  In  this  regard, 
Entercom states  that  it  used  the  approximate  times  of  the 
broadcasts, as noted by  the complainant, on  the dates cited  in 
the complaint in order to  prepare the transcript using tapes  of 
the broadcasts  maintained  by  the  station.   See  Attachment.1  
Entercom argues that the subject matter and the language used  in 
the  complained  of  broadcasts   is  not  actionably   indecent.  
Specifically, Entercom contends that  the material broadcast,  in 
context, is not  patently offensive as  measured by  contemporary 
community standards for the broadcast medium.

                        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  However, the First Amendment  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 organs or  activities.  Second,  the 
broadcast  must   be   ``patently  offensive   as   measured   by 
contemporary community  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)).  This  definition  has  been 
specifically upheld  by the  federal courts.7   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.  ACT I, supra.   As noted above, current law  holds 
that such times begin at 6 a.m. and conclude at 10 p.m.8 

     6.   The Commission's  indecency  enforcement  is  based  on 
complaints from  the  public.  Once  a  complaint is  before  the 
Commission, we  evaluate the  facts of  the particular  case  and 
apply the  standards developed  through Commission  case law  and 
upheld by the courts. See  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 at 8015,   24.  ``Given the sensitive nature  of 
these cases  and the  critical role  of context  in an  indecency 
determination, it is important that the Commission be afforded as 
full a record  as possible  to evaluate  allegations of  indecent 
programming.''   Id.   In  evaluating  the  record  to  determine 
whether the complained of  material is patently offensive,  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 
Indecency Policy Statement, supra, 16 FCC  Rcd at 8003  10.   As 
discussed below, we find that  the material broadcast on May  30, 
2001 and  on June  1, 2001  violated the  Commission's  indecency 
rule. 9

     7.   During the May 30, 2001 broadcast, the KNDD(FM) morning 
show personalities discussed  whether a  penis could  be used  to 
lift or pull  objects.  The  morning show staff  then decided  to 
give away concert tickets to listeners who would agree to  appear 
in the studio and pull  objects using their penises.  During  the 
June 1, 2001 broadcast, the morning show staff prepared to assist 
interested listeners in attempting this task.  See  Attachment.

     8.   Entercom acknowledges  that the  material broadcast  on 
May 30 and June  1, 2001 contained  references to sexual  organs.  
Thus, this material warranted scrutiny.  Although Entercom argues 
that, in context,  this material was  not patently offensive,  we 

     9.   With respect to the Indecency Policy Statement's  first 
key factor, we find that the sexual references in both the May 30 
and June 1, 2001  broadcasts are explicit  and graphic.  In  this 
regard, there is extensive  discussion as to  whether a penis  is 
capable of  pulling  different types  and  sizes of  objects.  In 
addition, there is discussion as to whether a penis would have to 
be erect to  pull a  13-inch television, and  the relative  penis 
size necessary to pull a Jeep.  Moreover, the anatomical features 
of a penis are discussed in terms of how to attach the objects to 
be pulled.  For example, on June  1, 2001, there is a  discussion 
about the use  of a  harness to  assist in  pulling the  objects, 
whether an individual's  penis is sufficiently  erect to put  the 
harness on and  whether his  testicles fit  through the  harness.  
Moreover, under the second key factor, the material broadcast  on 
May  30 and  June  1,  2001  dwells  on  and  repeats  at  length 
descriptions of male genitals.  

     10.  The inquiry under the third key factor of the Indecency 
Policy Statement is whether the material appears to pander, or is 
used to titillate or shock.  Entercom argues that the  broadcasts 
are not  patently offensive  because they  were not  intended  to 
pander to, titillate or shock the  audience, and are not lewd  or 
vulgar.  Notwithstanding Entercom's claims, there were vulgar and 
lewd references  to  male genitals  in  the context  of  explicit 
references to penis size,  erections, and the  parts of the  male 
genitals,  including  the  head,  shaft  and  testicles.    These 
references, in context,  are similar to  other material that  has 
been found to  be patently offensive.10   Thus, we disagree  with 
Entercom's assertion that the context of the broadcast would have 
been the same if the material had described lifting or pulling an 
object using a body  part other than the  genitals - such as  the 
nose or  a finger.   In the  complained of  material, the  sexual 
references are used to titillate or shock.11

     11.  Moreover,  we  reject  Entercom's  argument  that  this 
material is  consistent  with contemporary  community  standards.  
Entercom contends that explicit discussions of male genitalia are 
common  today  on  radio  and  broadcast  television,  and  cites 
material dealing with impotence  and erectile dysfunction,  penis 
size, non-clinical discussion  of penile enlargement  as well  as 
the Clinton  sex  scandal.   However, as  set  forth  above,  the 
Commission does not independently monitor broadcasts for indecent 
material,  and  relies  on  documented  complaints  of   indecent 
broadcasting as the basis  for its enforcement actions.12   Thus, 
the material that Entercom describes, if broadcast between 6 a.m. 
and 10 p.m., nevertheless may be, in context, indecent.  However, 
that material is not  at issue here.   Entercom also argues  that 
precedent from the first few  years after the Commission  adopted 
the  definition  of   indecency  does   not  accurately   reflect 
contemporary community standards and thus suggests that we cannot 
rely on  this  precedent  when evaluating  the  KNDD  broadcasts. 
Although standards  and  mores  certainly change  over  time,  we 
cannot accept Entercom's assertion that the material broadcast on 
May 30 and June 1, 2001 is consistent with contemporary community 
standards for the broadcast medium.  In this regard, looking to a 
national community standard that references the average broadcast 
listener, we find  that the  material broadcast  on KNDD(FM),  in 
context, is  patently offensive.13  This material  appears to  be 
actionably indecent because  it was  broadcast after  6 a.m.  and 
within the period when there was a reasonable risk that  children 
may have been in the audience.  

     12.  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.14   Based  on  the  material  before  us,  it 
appears that Entercom willfully and repeatedly violated 18 U.S.C. 
 1464 and section 73.3999  of the Commission's rules, by  airing 
indecent programming on KNDD(FM) on  May 30 and June 1, 2001.  

     13.  The Commission's  Forfeiture  Policy Statement  sets  a 
base  forfeiture   amount   of   $7,000   for   transmission   of 
indecent/obscene materials.15   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.''16  After  reviewing   all  of   the 
circumstances, we believe a $14,000 forfeiture is appropriate  in 
this case for the apparent broadcast of indecent material on  two 
separate occasions. 

                      IV.  ORDERING CLAUSES

     14.  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,17 that Entercom 
Seattle License, LLC is hereby NOTIFIED of its APPARENT LIABILITY 
FOR  FORFEITURE  in  the  amount  of  fourteen  thousand  dollars 
($14,000) for willfully and repeatedly violating 18 U.S.C.  1464 
and section 73.3999 of the Commission's rules.

     15.   IT IS FURTHER ORDERED, pursuant to section 1.80 of the 
Commission's rules, that  within thirty  days of  the release  of 
this Notice, Entercom SHALL PAY  the full amount of the  proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     16.  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  must 
note the NAL/Acct. No. referenced above.

     17.  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 above.

     18.  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 

     19.  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. 20554.18

     20.  IT IS FURTHER ORDERED that a copy of this Notice  shall 
be sent, by Certified Mail/Return  Receipt Requested, to John  C. 
Donlevie, Executive  Vice-President,  Entercom  Seattle  License, 
LLC, 401 City Avenue, Suite 409, Bala Cynwyd, Pennsylvania, 19004 
and to  Entercom's counsel,  Brian  M. Madden,  Esq.,  Leventhal, 
Senter &  Lerman  P.L.L.C.,  2000  K  Street,  N.W.,  Suite  600, 
Washington, D.C.  20006-1809. 


                         David H. Solomon
                         Chief, Enforcement Bureau



Radio Station:           KNDD(FM), Seattle Washington
Dates/Time of Broadcasts:     May 30, 2001 and June 1, 2001, 
                    between 6 a.m. and 10 p.m.
Material Broadcast:           The Andy Savage Show

May 30, 2001 

AS:  Andy Savage
J:   Jody
B:   Bob, the Producer
MV:  Caller

AS:  That was the  Red Hot  Chili Peppers, 107.7,  The End.  It's 
     7:16, I'm Andy  Savage, along with  Jody, Queen of  Normandy 
     and Bob  the  Producer,  who's  filling  in  for  Steve  the 

B:   Woop, Woop. 

AS:  50 going to 70 for the high today. It's going to be sunny 

J:   Was that your wacky producer noise right there? Woop,  woop, 
woop, woop, woop! 

AS:  Bob, I don't think  you should be  saying anything 'cuz  you 
lost on "Beat the Producer. 

B:   Alright, I'm Sorry, I'll be quiet. 

AS:  Meanwhile in  India when  they protest  against the  federal 
     government, you know they don't blow things up or  anything, 
     they pull Jeeps with their  penises. A uh, Naga Sathu  naked 
     holy man was demonstrating  again the government  harassment 
     of naked holy men  and to make sure  that they heard him  he 
     tied a rope around his penis and pulled a Jeep. 

J:   He should have  just used  a megaphone  like everyone  else. 
     What the Indian government has a big problem with naked holy 
     men? Are they're running around crazy like? 

AS:  I guess so, I guess it's  against the law. But he, I  guess, 
     pulled a  Jeep  to prove  his  point.  I'm sure  it  was  in 
     neutral. I hope it was in neutral. 

J:   I can imagine  it was  in neutral. I'm  sure it  was one  of 
     those like Suzuki Samurais too, not a big Hummer. 

AS:  Holy crap Nadi, he just pulled a  Jeep and it was in park  - 
he did it with his penis! 

J:   You always hear about guys  lifting stuff and pulling  stuff 
     with things  attached  to their  penises.  I think  that  is 
     incredible. Could you pull something with your penis? 

AS:  Me?

J:   Like if I was to tie, let's say um, what if it was something 
small like. 

AS:  I'd pull my penis right off! 

J:   If it was something small like 

AS:  Like an acorn, yeah I can drag that around. 

J:   Like my orange. Let's say I tied a rope around my orange and 
     then tied the other  end to your penis,  and you could  pull 

AS:  Of course I could drag that. 

J:   How about a 13 inch TV? Like at what point do you think. 

AS:  If I think, I think if I  was fully erect I could pull a  13 
inch TV.

J:   So you would have to be erect? 

AS:  Yes.

J:   Bob? 

AS:  Not for an orange though. 

J:   Bob, could you pull a 13 inch TV? 

B:   No. I'm not going heavier than ten pounds. I'm not.   That's 
     about my  cutoff, about  ten pounds-  erect, no  erect.  Ten 

J:   Well what do you think the problem would be, that you'd pull 
     your back out or you'd actually pull your penis off? 

B:   Perhaps. 

AS:  No, I don't think you'd pull  your penis off with a TV  that 

J:   Cause if these guys can drag stuff, why can't you? 
AS:  We're talking about  a Jeep.  Why, I don't  know I've  never 
tried nor do I care to try 

J:   I  want  to see  somebody pull  something with  their  penis 
     right in front of me live, here in the studio. 

B:   You could do a lot of damage. 

J:   Really. 

B:   You could  tear some  tissue. You  don't even  want to  joke 
around with....

AS:  Yeah. It's in there in some sort of socket I'm sure. What if 
     it just pops right out. That would suck. 

J:   Well it's like saying, you know, what if we're arm wrestling 
     and my arm pops out of the socket. 

AS:  That's true. 

J:   Things are attached with muscles and tendons. Your penis  is 
     attached with muscles and tendons. 

AS:  No it's a tissue that fills with blood, that's all, 

J:   Well it's attached. 

AS:  Well yeah,  it's just  skin though.  It's not  like it's  an 
attached bone. 

J:   Well if Naboo whatever can pull a Jeep with his penis....

AS:  Naga Sathu. 

J:   Do you think that he has some super penis? 

AS:  No. 

J:   And yours is not so super? 

B:   He's been practicing for  a long ass  time. He didn't  first 
start with a Jeep. 

J:   What about those guys that ? 

AS:  Mr. Lifto from the Jim Rose Circus. 

J:   He lifts stuff. 

AS:  He lifts stuff  with his  penis and he  lifts like  concrete 
blocks doesn't he? 

B:   But he started small. 

J:   So you gotta start small and practice and build up. 

AS:  I'm sure there's a training regime just, like in any sport. 

J:   Really? 
AS:  You don't start out with a shot-put and throw it, you  know, 
fifty you know .... 

J:   Yards. 

AS:  Right, whatever. You gotta start small. 

J:   With like an acorn for instance. 

AS:  I don't know.  How do you  learn how to,  I guess it's  like 
     anything. You practice, you get better. You pull things with 
     your penis. You go from an orange to a 13 inch TV to maybe a 

J:   Can I, can I put something  out here, and if you don't  like 
     what I'm about to say then  go ahead and just say Jody  shut 
     up. We have so many  concert tickets right now, just  flying 
     out of all our pockets -  I say tomorrow morning if  someone 
     is willing to  come in here  and let me  tie something  onto 
     their penis and if they can pull it like five feet.... Maybe 
     something like five pounds,  if they can  pull it five  feet 
     here in the studio, we'll  give them concert tickets.  Their 

AS:  Well, I'll go along with that. But I mean I think it  should 
     be a 'bid' thing. For example, Joe can call up and say  yeah 
     I'll pull an orange for you  five feet, big deal. Who  wants 
     to see that? 

J:   But if someone else can pull a 13 inch TV? 

AS:  Right. Somebody who's  gonna do something  kind of  amazing, 
     yeah we'd love to have you. 

J:   So their choice Godsmack & Deftones tickets or 

AS:  Three Doors Down. 

J:   Three Doors Down with Tantric and Lifehouse. 

AS:  Yes. 

J:   Their choice. 

B:   We're gonna see an amazing spectacle of penis pulling. 

J:   I wanna see some penis pulling. 

B:   I guarantee, I guarantee there's  people out there that  can 
     pull a lot of  stuff with their penis  and we're gonna  hear 
     from them. 

AS:  Do you think there's a lot of people out there that spend  a 
     lot of time practicing? I mean if they did, wouldn't we hear 
     about them in the news or like in some show, like in the Jim 
     Rose Circus? 

J:   You know certain  people collect stamps?  Other people  pull 
     stuff with their penis. It's whatever your hobby is. 

AS:  Well this guy did a freakin' Jeep. I don't think anybody  is 
gonna do that well. 

J:   That's incredible.

AS:  Yes it is. How about a Volkswagen? 

J:   Some sort of smallish Cabriolet type thing? 

AS:  A little lighter, yeah? 

J:   No, we don't need something like that. I'm sayin' like,  you 
     know, some sort  of studio  equipment that  weighs like  ten 

AS:  Let's say, for example, we get 20 people to call in and  say 
     yes, I can pull stuff with my penis. Why don't we get all 20 
     in to pull the Volkswagen? 

J:   Wow. 

AS:  That'll make the news. 

J:   That'd be something. 

AS:  Alright. Well, check it out.  421-107. It's 7:21. Coming  up 
     we're gonna give you a chance to win some  Godsmack/Deftones 
     tickets in a different sort  of way and we're still  waiting 
     for the Stone Temple Pilots "Days of the Week." 

J:   Yeah, (clapping) whew.

AS:  It should be here any minute now. 

     [Recorded Voice Over: 107.7, The End, Music News You Can Use 
-- with Steve the Producer. Now.] 

J:   If you enjoyed  Weezer's new "Green"  album you waited  four 
     years for,  it  looks like  you're  not going  through  that 

AS:  You have it, we have it.

J:   We have what? 

AS:  We have the new Stone Temple Pilots. 

J:   Oh nice. 

AS:  Alright, do that. 

J:   Alright, I'll do this real quick. 

J:   Uh, Weezer used one day off to go into the studio and  start 
     recording new songs already. They've already laid down demos 
     for twelve new  songs about  sixteen minutes  of music.  I'd 
     imagine in case you are  wondering, among the new songs  one 
     is called "American Gigolo," there is an instrumental called 
     "Burnt Jamb" that is, j-a-m-b  like a doorjamb because  they 
     are clever. Mikey Walsh the  bassist says that they do  want 
     to put out a new album every year just like the bands in the 
     sixties use to and that  waiting four years was obviously  a 
     bad idea. 

     Again Endless Summer  Concert #6 are  down with Tantric  and 
     Lifehouse. Wednesday  July  11, Pickeria,  tickets  on  sale 
     Friday 4:00 p.m. at Ticketmaster $27.50. Also Endless Summer 
     Concert #7, Godsmack  and Deftones  Friday, July  13 at  the 
     Gorge. Tickets go  on sale 11a.m.  Ticketmaster, $35.00.  Of 
     course, listen all week  to win tickets  before you can  buy 
     them here  on the  morning  show and  inside of  Endmail  at for extra chances to win. 

AS:  Yeah. 

J:   That's it. 

AS:  Traffic. 

J:   I-5 north bound heavy  at south bound  88th street and  then 
     messy from Oliver Place to  Seattle Bridge. 1-5 south  bound 
     congested from 1-96 southwest to northeast 185th street  and 
     shoreline continues  heavily  at north  gate  also  sluggish 
     approaching the  ship Canal  Bridge. 1-5  express lanes  are 
     heavy  through  the  Convention  Center.  405  north   bound 
     congested from the Rednest  Curve to Colecreek Parkway.  405 
     South bound slow  from 532  Northeast 85th  Street and  then 
     heavy at Northeast 44th south.  Stop and go through the  Red 
     Nest Curve and then messy from 167 to the 1-5 Interchange at 
     South Center. 520  East Bound heavy  stop and go  throughout 
     the arboretum and that's your End traffic. 

AS:  Hmm. 

J:   You ready over there? 

AS:  Ah, yeah, I'm, I'm just thinking  to myself, you know I  bet 
     if we had  twenty guys  pulling on a  Volkswagon with  their 
     penises Q13 would cover it. 

J:   You think? 

AS:  Yes, I think they will cover it. 

J:   But we don't, do we  have enough concert tickets for  twenty 

B:   Oh yeah. 

AS:  I'll buy them. 

J:   Yeah? 

AS:  Yes, alright, Brad. 

MV:  Yeah, I gotta question on this whole penis thing. 

AS:  Yeah. 

MV:  Well, dude seriously,  how could you  possibly attach it?  I 
     mean are we talking duct tape? Are we talking ..... 

J:   No. No. 

AS:  Good question. 

J:   No, no. I'm thinking that we would tie some sort of  string-
like fabric around  ... 

AS:  No. You tie  string and  something that  heavy that's  gonna 
like rip the skin. 

MV:  Yeah. Jody I love you but you gotta understand its not built 
quite like that. 

J:   No, I've seen penises  once or twice  before. I can  imagine 
that maybe bungee cord? 

AS:  What? 

AS:  Use one of hair scrunchies or like a wristband or  something 
     and double-up and then tie some string to that. 

J:   Well how? 

MV:  Yeah, well, I don't know. 

AS:  Hair scrunchies! 

MV:  I'm all for  the contest and,  more power to  you, but  that 
     poor guy. If we're talking like kite strings, god help him. 

AS:  No, right.  That  would  like  sever  the  head  right  off, 
especially for the circumcised nadoos. 

J:   Oh, we're  not doing  it  around the  head, we're  doing  it 
     closer to the bottom of the shaft, you gotta get your whole, 
     I mean weights and levers. 

MV:  Yeah, but there's not like knobs down there. I mean what are 
you gonna  ..... 

AS:  There's not really anything to hold on to, it would slip all 
the way to the mushroom, if you will. 

MV:  Exactly. 

J:   There's not knobs. Are you sure? 

AS:  Yes. 

MV:  Last time I checked. No, that's what I was curious about.  I 
     think it's a great idea, but man, it's gonna have to be tape 
     or something. 

AS:  Well you know Brad this is all for not if you don't actually 
     know how  to pull  anything with  your penis  or have  never 
     practiced it, right. 

J:   I'm gonna have Bob, the  producer, pull down his pants  real 
     quick and we're gonna figure out some sort way to tie  stuff 
     on it. 

AS:  Could you get us a hair crunchie please? 

J:   Scrunchie. 

AS:  Scrunchie. 

J:   We gotta trial and error here - is the way to attach  things 
to your penis. 

AS:  First we'll have Bob try it. Thank you very much and  that's 
     a fine point, you don't want to use like flimsy bad string. 

MV:  Absolutely not. It's bad, bad news. 

J:   Nobody's duct taping  anything to  anybody's penis,  believe 
you me. 

AS:  Alright. We'll investigate  it, we'll look  into it and  see 
     how we  can actually  do it.  Alright, coming  up next  here 
     check this out, this is ah, I'm not going to play the  whole 
     thing or  anything, just  a piece  of the  new Stone  Temple 
     Pilots called  "Days  of  the Week".  [Plays  two  lines  of 
     music]. Alright that's next. The whole thing on the End. 

     [Lengthy Commercial Break] 

                              *   *  *  *  * 

June l, 2001 

AS:  Andy Savage
J:   Jody 
B:   the Producer 
C:   Carl 
K:   Kevin
MV:  Male voice

AS:  Alright, you ready for some music news? It might take Carl a 
little while to get the harness on. 

     [Recorded Voice Over: 107.7, The End, Music News You Can Use 
     -- with Steve the Producer. Now.] 

J:   So, if you've been watching VH-1's "Most Shocking Moments Of 
     Rock. Listen to this. Mark McGrath, he's from Sugar Ray, the 
     front man,  he's  hosting  it,  he's  got  a  shocking  past 
     himself. If you've ever seen Backstage Sluts, 1, 11 and 111. 
     He was in that, doing some  shocking stuff. He agreed to  do 
     the show as long as  the network downplayed his  involvement 
     in that series of porn films.  He's in it, Fred Durst is  in 
     it, and they're doing very  nasty things with groupies.  The 
     series director,  porn  star Matt  Zane  shot back  at  Mark 
     McGrath and he said that it was Mark's decision to be in the 
     film and even signed a release form. To have a fellow artist 
     censor you for your  personal reasons is  the lowest of  low 
     acts that on can commit. So Matt Zane, pom star, firing back 
     at Mark McGrath. So basically  Mark was just like sure  I'll 
     host it if you  pretend like you never  saw me in  Backstage 

     Blink 182 news.  Drummer Travis  Barker has  a big  problem. 
     He's been telling  people that a  deranged stalker has  been 
     after him,  broke into  his house  a number  of times,  left 
     letters in each room that read ``I'm watching you, lock your 
     doors.'' And then the next day, letters again, ``P.S.,  lock 
     your doors.'' Travis, obviously freaked out, says since  the 
     incident occurred he invested in two 140-pound  Rottweillers 
     and now carries a  gun to protect his  family. He says  it's 
     not really him that he's worried about, if it comes down  it 
     he  can  kick  the  guy's   ass.  He's  worried  about   his 
     girlfriend. Well you know, if it  comes down to him or  this 
     weird guy, he's like you know I'll just beat him up. But  if 
     my girlfriend's in the house while I'm on tour, that's  what 
     I'm worried  about. He  says  now if  anyone comes  into  my 
     house, they're gonna be sorry. 

     Rehab. Singers  Brooks and  Danny Boone  say they've  always 
     felt like oddballs in  their native Atlanta because  they're 
     white rappers.  Hmmm, I  wonder why  they would  feel  weird 
     about that? They say we're the only ones that I know of that 
     are rapping.  They say  that people  usually look  at  white 
     rappers as a novelty  act. But, ``To  me, rhyming is  poetry 
     and that is dateless.'' 

J:   If I can get some of these penis guys out of the way here, I 
have some. . 

AS:  Wait a minute. I  hate to interrupt, but  we have a  problem 
     here. Apparently crazy Carl can't get aroused enough to  get 
     the harness on. 

J:   Oh really. 

AS:  Yes. 

C:   Actually, the harness that actually goes around the  scrotum 
     is a little tight and I'm worried about.... 

AS:  Your testicles are too large. 

C:   We can't snap it through. 

J:   You're supposed to pull them through there crazy Carl.  It's 
like a belt. 

AS:  Kevin, could you go over and help him? 

J:   Oh God. 

K:   That's not in my job description. 

AS:  Well Carl do what you gotta  do. Would anybody else like  to 
     try? I mean if  you can't get the  harness on we can't  pull 
     the car. 

J:   I think Joe the modulator should step up and try. 

AS:  Yeah virgin. 

J:   While he's doing this, let  me just mention this one  thing. 
     If you  sign  up  for Endmail  at  for  your 
     exclusive invitation to another  penny pincher concert  with 
     Rehab. It's Tuesday,  June 12th  at Graceland.  It's just  a 
     buck seven  with your  printed Endmail  invite. For  Endmail 
     listeners only. Of course, you cannot get in unless you  are 
     on the  Endmail list.  Just another  reason to  sign up  for 
     Endmail at 

AS:  And get there early or you still may not get in 'cause  it's 
kind of a first come first serve. 

J:   Not kind of. 

AS:  There's a fire code you know. 

J:   It is.

AS:  Here's traffic. 

J:   I-5 Southbound heavy to just before the Orange County  line. 
     405 Northbound  just  heavy  north of  northeast  44th.  405 
     Southbound heavy  just South  of  Southeast 124th.  And  167 
     Northbound heavy off  15th Street  to the  Green River.  And 
     heavy  approaching  the  405  interchange,  and  that's   in 

AS:  Alright. Kevin  from Love  Zone, these  harnesses, are  they 
     specifically made for larger men or what is the deal here? I 
     mean, how big do you have to be to get into this harness? 

K:   I believe that they're kind of a one size fits all. 

AS:  Yeah? So you can  be very small and  it doesn't matter?  I'm 
     not trying to make fun of  anybody here. But, I mean,  maybe 
     Carl has a  half inch  whatever and  can't get  it thru  the 

MV:  I think Carl wasn't  smart enough to it  button and so  he's 
     making up a story about ``Oh, I'm too big to put it on.''

J:   Joel's making fun of crazy Carl. I feel things tensing up in 
     the studio. Joel, he's crazy. You never poke fun at a  crazy 

AS:  Alright. All you guys that are here, could you please grab a 
harness from Kevin. 

J:   Yeah. 

AS:  And try and put it on. 

J:   Yeah. 

AS:  And then we'll  tie a piece  of rope to  it. And then  we'll 
yank you around like dogs .

     [Lengthy Commercial Break] 



     1 As set forth  in note 9, infra,  the complaint is  denied 
with respect to material broadcast on May 31, 2001, and thus the 
attachment does not include this material.

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

     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  In  FCC v.  Pacifica Foundation,  the Court  quoted  the 
Commission's definition  of  indecency with  apparent  approval.  
FCC v. Pacifica Foundation, supra note  4, 438 U.S. at 732.   In 
addition,  the  D.C.  Circuit   Court  of  Appeals  upheld   the 
definition against constitutional challenges.  ACT I, supra note 
4, 852 F.2d at 1339; ACT II, supra note 4, 932 F.2d at 1508; ACT 
III, supra note 4, 58 F.3d at 657.

     8  ACT III, supra note 4.

     9  The complained of material broadcast on May 31, 2001 was 
a discussion of the use of sexual fantasy to reduce stress,  and 
included references  to  masturbation  and  to  fantasies  about 
sexual encounters with  celebrities and  others.  Although  this 
material, in  context,  describes  sexual activity,  it  is  not 
patently  offensive  as   measured  by  contemporary   community 
standards for the  broadcast medium and  thus is not  actionably 
indecent.   Specifically,   the   sexual  references   are   not 
sufficiently explicit or  graphic to be  deemed actionable,  nor 
does the material dwell upon,  or repeat at length  descriptions 
of sexual activities.   In context, the  sexual references  were 
not presented to  titillate, pander to,  or shock the  audience.  
See, e.g., Citadel  Broadcasting Company,  (KKMG(FM)), DA  02-23 
(EB Jan. 8, 2002).  The complaint is denied with respect to  the 
material broadcast on May 31, 2001.

     10    See,  e.g.,  Independent  Group  Limited  Partnership 
(WWWE(AM)), 6 FCC Rcd, 3711, 3712 (MMB 1990)(humorous discussion 
of a man with a penis on his head, which is a ``birth defect''); 
Goodrich Broadcasting, Inc. (WVIC-FM), 6  FCC Rcd 2178, aff'd  6 
FCC  Rcd  7484  (MMB   1991)(vulgar,  repeated  and   gratuitous 
references to sexual  organs and  activities in  the context  of 
humorous discussions concerning  an allegedly  true incident  in 
which a man's testicle was trapped  in the drain of a hot  tub); 
KFI, Inc.(KFI(AM)), 6 FCC  Rcd 3699, 3700 (MMB  1989)(discussion 
of the size of  the genitals of  male celebrities and  political 
leaders, including  commentary on  the  size of  erect  genitals 
relative to those that are not erect.).

     11   FCC v. Pacifica Foundation, supra note 4, 438 U.S.  at 
757 (1978)(Powell, J., concurring in part and concurring in  the 
judgment)(``[T]he language employed is,  to most people,  vulgar 
and offensive.  It was chosen specifically for this quality, and 
it was  repeated  over  and  over as  a  sort  of  verbal  shock 

     12 See  6, supra.   See also, Indecency Policy  Statement, 
supra, 16 FCC Rcd at 8015.

     13 See, e.g., WQAM License Limited Partnership  (WQAM(AM)), 
15 FCC  Rcd, 2518,  2520 (2000)  (rejecting a  similar  argument 
concerning contemporary  community  standards in  light  of  the 
Clinton sex scandal and explaining that the Commission uses  its 
expertise to apply a national community standard that references 
the average broadcast viewer or listener).  See also,  Indecency 
Policy Statement, supra, 16 FCC Rcd at 8002 note 15.

     14 See Southern California Broadcasting Co., 6 FCC Rcd 4387 

     15  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).

     16   Forfeiture Policy Statement, 12 FCC Rcd at 17110.

     17 47 C.F.R.  0.111, 0.311 and 1.80.

     18 See 47 C.F.R.  1.1914.