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

In the Matter of                )  File No. EB-00-IH-0228
                                )
Citadel Broadcasting Company    )  NAL/Acct.             No. 
200132080057
                                )  Facility ID #11229
Licensee of Station KKMG(FM),   )  
Pueblo, Colorado                )


                MEMORANDUM OPINION AND ORDER


     Adopted:  January 7, 2002                 Released:   
                       January 8, 2002


By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.   In this  Order, we rescind the  Notice of Apparent 
Liability  (``NAL'')   in  which   we  found   that  Citadel 
Broadcasting  Company  (``Citadel''),  licensee  of  Station 
KKMG(FM), Pueblo, Colorado, apparently  violated 18 U.S.C.  
1464  and  Section 73.3999  of  the  Commission's rules,  47 
C.F.R.    73.3999,  by  willfully  broadcasting  apparently 
indecent language.1  Having  reviewed Citadel's response and 
having  again reviewed  the relevant  case law,  we disagree 
with  our initial  analysis  and we  now  conclude that  the 
material  at   issue  was   not  patently   offensive  under 
contemporary community  standards for the  broadcast medium.  
Accordingly, we  conclude that the licensee  did not violate 
the applicable  statute or our  indecency rule, and  that no 
sanction is warranted.

                       II.  BACKGROUND

     2.   The Commission  received a  letter dated  July 18, 
2000,  complaining  about  repeated  broadcasts  of  a  song 
entitled ``The  Real Slim Shady'' on  Station KKMG(FM).  The 
complaint included lyrics that the complainant contended are 
offensive.  After  reviewing the lyrics,  Enforcement Bureau 
(``Bureau'') staff  issued a  letter of inquiry  to Citadel, 
licensee of  the station involved.   In its response  to the 
staff's inquiry, Citadel claimed  that the song version that 
the  station aired  was  different from  the one  complained 
about, and that the station carefully screened the broadcast 
version to omit any offensive  language through the use of a 
muting  device  or  overdubbed sound  effect.   In  support, 
Citadel submitted a copy of  the ``radio edit'' version, and 
argued that  the lyrics  contained therein are  not indecent 
under the applicable Commission standards.

     3.   On June  1, 2001,  the Bureau  issued a  Notice of 
Apparent  Liability   (``NAL'')  which   rejected  Citadel's 
arguments and found that the ``radio edit'' version of ``The 
Real  Slim  Shady''  apparently  violated  the  Commission's 
indecency  rule. In  the NAL,  we acknowledged  that Citadel 
attempted to render the  song suitable for broadcast through 
editing, but found that the licensee failed to purge several 
apparently  indecent references.   To redress  this apparent 
rule violation, we concluded that a monetary sanction in the 
base forfeiture amount of $7,000 appeared appropriate. 

     4.   Citadel  challenges  the NAL's  findings,  arguing 
that  the  version broadcast  makes  no  explicit sexual  or 
excretory  references, and  is not  patently offensive.   In 
this regard, Citadel contends that  any of the song's sexual 
or excretory  references cited in  the NAL are  oblique, and 
are intended merely to  satirize and parody popular culture, 
and not  to titillate,  shock, or  pander to  listeners.  In 
view of  this, Citadel asks  that the NAL's findings  be set 
aside and that a monetary forfeiture not be imposed.  

                      III.  DISCUSSION

     5.   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.  

     6.   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 

     7.   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 (2001).  ``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, 16 FCC 
Rcd at 8003  10. 

     8.   In the  NAL, we found  two passages in  the edited 
version of the song ``The Real Slim Shady'' to be apparently 
indecent:

          My bum is on your lips
          My bum is on your lips

          And if I'm lucky you might just give it a little 
kiss
          And that's the message we deliver to little kids
          And expect them not to know what a woman's BLEEP 
is
          Of course, they're gonna know what intercourse is 

          *          *          *          *          *         
*  

          It's funny cause at the rate I'm goin' 
          When I'm 30 I'll be the only person in the nursing 
home flirting
          Pinching nurses asses when I'm BLEEP or jerkin'
          Said I'm jerkin' but this whole bag of Viagra 
isn't workin.' 


     9.   The  passages in  question, in  context, refer  to 
sexual  activity.9  Thus,  the material  warranted scrutiny.  
Based  on  our review  of  Citadel's  response, however,  we 
conclude  that  the  material  broadcast  was  not  patently 
offensive, and thus not actionably indecent.

     10.  With respect  to the first  key factor set  out in 
the  Indecency Policy  Statement,  we  agree with  Citadel's 
contention  that  the  sexual references  contained  in  the 
song's ``radio  edit'' version10 are not  expressed in terms 
sufficiently explicit or graphic enough to be found patently 
offensive. Although  the song,  as edited, refers  to sexual 
activity, these references are oblique.  In this regard, the 
material is less explicit and  graphic than every example of 
indecent   material  mentioned   in  the   Indecency  Policy 
Statement in connection with this factor.  See id. at  13-
14.

     11.  We  also  agree  with Citadel's  contention,  with 
respect to the third key  factor, that the sexual references 
contained  in the  ``radio  edit'' version,  in the  context 
presented,  do not appear  to pander  to, or  to be  used to 
titillate or shock its audience. Thus, the sexual references 
do not have the effect of a ``verbal shock treatment.'' See, 
e.g.,  FCC   v.  Pacifica  Foundation,  438  U.S.  726,  757 
(1978)(Powell, J., concurring in  part and concurring in the 
judgment).  In this regard, the  material is of less concern 
than all of  the examples mentioned in  the Indecency Policy 
Statement  in connection  with this  factor.  See  id. at   
20.11 
     
     12.  Consequently,  based on  our  review of  Citadel's 
response in  light of the  applicable case law,  we conclude 
that Citadel did not violate the statute or the Commission's 
indecency rule  through its broadcast of  the ``radio edit'' 
version of ``The Real Slim Shady.''

                    IV.  ORDERING CLAUSES

     13.  Accordingly,  pursuant  to  Sections  0.111(a)(7), 
0.311 and 1.80(f)(3) of the Commission's rules, 47 C.F.R.  
0.111(a)(7), 0.311  and 1.80(f)(3),  IT IS ORDERED  THAT the 
Bureau's  June 1,  2001,  NAL  against Citadel  Broadcasting 
Company, licensee of Station  KKMG(FM), Pueblo, Colorado, is 
hereby RESCINDED. 

     14.  IT  IS  FURTHER  ORDERED   THAT  a  copy  of  this 
MEMORANDUM OPINION AND ORDER shall be sent by Certified Mail 
-- Return Receipt  Requested to Kathleen A.  Kirby, Esq. and 
Elizabeth E. Goldin, Esq.,  Counsel for Citadel Broadcasting 
Company, 1776 K Street, N.W., Washington, D.C. 20006. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 

_________________________

1 DA 01-1334 (EB rel. June 1, 2001).   

2 See Miller v. California, 413 U.S. 15 (1973), reh.g 
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.  

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, supra, the Court quoted the 
Commission's definition of indecency with apparent approval.  
FCC v. Pacifica Foundation, supra, 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 Citadel amends its prior submission to indicate that the 
third phrase actually broadcast was not ``when I'm BLEEP or 
jerkin','' but instead ``when I'm BLEEP with jergens.''  

10 We note that the song at issue here is not the same 
version that was the subject of an earlier Bureau NAL.  See 
In re Liability of Capstar TX Limited Partnership 
(WZEE(FM)), 16 FCC Rcd 901 (EB 2001) (forfeiture paid).

11 With regard to the comparison in this paragraph and 
paragraph 10 with cases mentioned in the Indecency Policy 
Statement, we do not mean to suggest that those cases 
constitute a floor on what is indecent.  But the fact that 
all of the indecency cases cited in those sections involve 
stronger facts than here does support our conclusion that 
the material here is not indecent.