Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


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

In the Matter of                 )
GA-MEX Broadcasting, Inc.,       )    File No. EB-01-IH-0411
                                )    FRN 0004-3293-97
Licensee of Station WAZX(AM)     )    Facility ID # 22983
Smyrna, Georgia                  )
                                )    File No. EB-01-IH-0411
                                )    FRN 0004-3294-05
WAZX-FM, Inc.,                   )    Facility ID # 71198
Licensee of Station WAZX(FM),    )    NAL/Acct. No. 200232080011
Cleveland, Georgia               )


Adopted:   April 30, 2002               Released:  May 1, 2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we find  that GA-MEX Broadcasting,  Inc., licensee  of 
station WAZX(AM), Smyrna, Georgia and WAZX-FM, Inc., licensee  of 
station WAZX(FM), Cleveland, Georgia (collectively referred to as 
``WAZX''), apparently violated 18 U.S.C.   1464 and 47 C.F.R.   
73.3999 by willfully broadcasting indecent language.1  Based upon 
our review  of  the facts  and  circumstances in  this  case,  we 
conclude that WAZX is apparently  liable for a forfeiture in  the 
amount of seven thousand dollars ($7,000).

                        II.   BACKGROUND

     2.   The Commission received a complaint alleging that  WAZX 
broadcast indecent material  during the Spanish-language  call-in 
talk show  ``el Manero'' on April 6, 2001, between 8:00 a.m.  and 
10:00 p.m.   The  complainants  submitted an  audio-tape  of  the 
broadcast.  After reviewing the complaint, we issued a Letter  of 
Inquiry  to  WAZX,  attaching  a  copy  of  the  audio-tape   and 
transcript (in  English),  and  asking the  licensee  whether  it 
broadcast the material  at issue and  whether the transcript  (as 
translated) accurately reflects the broadcast materials.  

     3.   The subject of the morning broadcast focused on teenage 
sex and masturbation, with the discussion being led by Claudia P. 
Morales, a licensed  psychologist, and  two on-air  personalities 
that provided commentary  and jokes with  taped studio  laughter.   
Portions of  the  transcript  listed below  reveal the  following 
jokes and commentary Tthe station's on-air personalities made the 
following statements during the broadcast:

          DJ3:     ``That reminds [me] of a little  kid 
          joke.  There is a  little kid that tells  his 
          mother: `Mom,  Mom  I  need  to  pee  I  want 
          Grandpa to take me  [to] the bathroom.'   His 
          mother responds, `wait until your brother can 
          take you.'  The kid  screams out, `No I  want 
          it to be my Grandpa.'  The mother asks,  `Why 
          does it have to be your grandpa?'  The  child 
          responds, `because his hand shakes.''

          DJ2:  ``The  benefits of  having  Parkinson's 

                          *    *     *    *    *     *    *     *                            
The transcript also includes  another joke by  one of the  on-air 

          DJ3:   ``Since we  are talking about  adults. 
          There was  a  young  man  that  had  lots  of 
          blemishes, and he asked his friend what to do 
          about them. The friend  told him to take  his 
          girlfriend to the movie and excite her a lot.  
          Put in your  hand, well you  know where,  and 
          thean you clean your face with it.  When your 
          hand is nice  and wet then  you pass it  over 
          your face.  He did this and when he came  out 
          everyone   started    screaming.''     ``He's 
          injured, he's injured.''

          DJ1:    ``Why, was she menstruating?''

          DJ3:    ``Yes, the girl was menstruating.''

          *    *    *    *    *    *    *    *

One of the on-air personalities  also made the following  comment 
during the                                  broadcast:

          DJ2:    ``There's the bicycle technique.  Did 
          they ever tell you about that one?  You  take 
          your penis  put  it  in  between  your  legs, 
          squeeze it  between your  legs and  then  you 
          start   moving   your   legs   like    you're 

     4.   WAZX filed a  response to our  inquiry on November  16, 
2001 in which  it admits that  it had broadcast  the material  in 
question and acknowledges that  the translation of the  broadcast 
is essentially  accurate  with  exceptions not  relevant  to  our 
determination here., after reviewing  the English translation  of 
the broadcast, it was ``in  substantial accord with the  accuracy 
of its  contents.''  WAZX  does not  deny that  it broadcast  the 
material between the hours of 6 a.m. and 10 p.m.  WAZX  maintains 
in its  response that  the  premise of  the  weekly show  was  to 
address sexual issues/topics  by having  a licensed  psychologist 
respond to  on-air call-in  questions with  ``comments and  humor 
[provided] from  the on-air  personalities.''  WAZX  argues  that 
``it is typical in...Latin culture to attempt to make light of or 
fun of otherwise serious topics.'' Thus, ``the goal...was to have 
fun and cause laughter.''  Nevertheless, WAZX states that it  had 
already concluded, prior to receiving the Commission's Letter  of 
Inquiry, ``that the strong content and behavior of the  program's 
on-air  personalities  was  not  appropriate  for  the  stations' 
audience and was  not in  accord with  the internal  broadcasting 
policy of WAZX...'' Further, WAZX notesd that ``the overall tenor 
of the show was approaching the limit of good taste'' and it  had 
therefore canceled  the program.   Lastly,  WAZX states  that  it 
``regrets the broadcast of the specific  programming...occurred'' 
and that it has ``taken steps to ensure that similar questionable 
programming is not broadcast in the future.''

                        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 or excretory  activities or  organs.  
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''), 
supra, 16 FCC Rcd 7999, 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.

     8.   The jokes and commentary in the broadcast quoted above, 
in context,  refer  to sexual  or  excretory activity  or  organs 
(including the  sexual  organs  of a  child).   Accordingly,  the 
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 Indecency  Policy  Statement, 
supra, 16 FCC Rcd at 8003  10.

     9.   With respect to the first key factor, we find that  the 
sexual references  in  the broadcast,  one  of which  involves  a 
child, are explicit and  graphic.  It is  of no consequence  that 
the jokes did not  explicitly refer to a  sexual organ or  sexual 
activity.  The Commission has repeatedly held that ``innuendo may 
be  patently  offensive  within  the  meaning  of  our  indecency 
definition if  it  is understandable  and  clearly capable  of  a 
specific sexual  or  excretory  meaning, which,  in  context,  is 
inescapable.''9  Although  the jokes  consisted of  innuendo  and 
indirect  sexual   references,   not  only   was   the   language 
understandable and clearly capable  of a specific sexual  meaning 
but  also,  because  of  the  context,  the  sexual  import   was 
inescapable.10  Indeed, the  reference to menstruation  following 
the second of the two jokes quoted above removes any doubt as  to 
what was meant.  The comment regarding masturbation was  explicit 
and graphic.

     10.  Furthermore, with  respect  to  the  second  and  third 
factors, we find that the sexual references are not isolated  and 
they appear  to  be used  to  shock, pander  or  titillate.  WAZX 
suggests  that   the   presence  of   a   licensed   psychologist 
participating     in     the      discussion     provided      an 
informational/educational atmosphere  in  which teenage  sex  and 
masturbation could  be discussed,  with the  hosts simply  adding 
humor to an  otherwise serious topic.   We reject this  assertion 
based on  the  overall context  of  the comments  and  discussion 
engaged in by  the on-air personalities.  While the  psychologist 
offered a relatively serious discussion  of teenage sex, the  on-
air personalities repeatedly  undermined and  muted the  supposed 
informational purpose  of  the  program by  joking  about  sexual 
activities and organs  in a patently  offensive manner.11   While 
the use of  certain terms  does not  automatically make  material 
indecent, we believe that the graphic sexual references, as  well 
as the announcer's comments, laughter,  and jokes, show that  the 
material was  offered  in  a pandering  and  titillating  manner, 
rendering the material patently offensive.12  

     11.  The context in which  material is offered is  essential 
to making a  determination as  to whether  material is  indecent.  
For example, in  a case  concerning an episode  on the  ``Geraldo 
Rivera Show'' entitled ``Unlocking the Great Mysteries of  Sex,'' 
the Mass Media Bureau  held that the  material broadcast on  that 
program was  not patently  offensive within  the meaning  of  the 
statute because the program as  a whole was a serious  discussion 
of sex  with  people knowledgeable  in  the field.   Letter  From 
Chief, Complaints and Investigation Branch, Enforcement Division, 
Mass Media Bureau to Gerald  P. McAtee, 8210-EJS (issued  October 
26, 1989).  See also King Broadcasting Co. (King-TV), 5 FCC  2971 
(1990) (broadcast of high school sex education class not indecent 
because material was clinical or instructional).  Here,  however, 
while parts  of the  broadcast handled  the subject  matter in  a 
relatively serious manner, the comments  and jokes by the  on-air 
personalities   quoted   above   cannot   be   characterized   as 
educational, clinical or instructional.  Rather, the only purpose 
of those jokes and  comments appears to have  been to pander  and 
titillate.13  The excerpts  at issue  here are  similar to  other 
broadcasts found to be indecent or apparently indecent.14

     12.  Thus, we find that the  material broadcast on WAZX,  in 
context,  was  apparently  patently  offensive  as  measured   by 
contemporary community standards.  WAZX  does not claim that  the 
material was broadcast outside the 6  a.m. to 10 p.m. time  frame 
relevant to an  indecency determination.  The  exchange at  issue 
was  broadcast  sometime  after  8:15  a.m.,  when  there  was  a 
reasonable risk that children may have been in the audience,  and 
thus is legally actionable.  For  these reasons, we find that  on 
April 6,  2001,  WAZX-AM   and WAZX-FM  apparently  violated  the 
prohibitions in  the  Act  and  the  Commission's  rules  against 
broadcast indecency.

     13.  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.15   Based  on  the  material  before  us,  it 
appears that WAZX willfully violated 18 U.S.C.  1464 and section 
73.3999 of the Commission's rules, by airing indecent programming 

     14.  The Commission's  Forfeiture  Policy Statement  sets  a 
base  forfeiture   amount   of   $7,000   for   transmission   of 
indecent/obscene materials.16   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.''17

     15.  After reviewing all  of the  circumstances, we  believe 
that a  $7,000 forfeiture  is appropriate  in this  case for  the 
apparent broadcast of indecent material.

                      IV.  ORDERING CLAUSES

     16.  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,18 that  GA-MEX 
Broadcasting, Inc.,  and WAZX-FM,  Inc., are  hereby NOTIFIED  of 
their 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.

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

     18.  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.

     19.  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.

     20.  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 

     21.  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. 20554.19

     22.  IT IS FURTHER ORDERED that a copy of this Notice shall 
be sent, by Certified Mail/Return Receipt Requested, to Javier 
Macias, President, WAZX-FM, Inc., and GA-MEX Broadcasting, Inc., 
2460 N. Atlanta Rd., Smyrna, GA., 20080 and to WAXZ's counsel, 
Dan J. Alpert, 2120 N. 21st Rd., Suite 400, Arlington, VA. 22201. 




David H. Solomon
                                        Chief, Enforcement Bureau


     1 The  program  was  simulcast  on the  WAZX's  AM  and  FM 

     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 21, 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  43, 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 43.

     7  In  FCC v.  Pacifica Foundation,  the Court  quoted  the 
Commission's definition  of  indecency with  apparent  approval.  
FCC v. Pacifica Foundation, supra note  43, 438 U.S. at 732.  In 
addition,  the  D.C.  Circuit   Court  of  Appeals  upheld   the 
definition against constitutional challenges.  ACT I, supra note  
43, 852 F.2d at 1339; ACT II, supra note  43, 932 F.2d at  1508; 
ACT III, supra note  43, 58 F.3d at 657.

     8  ACT III, supra note  43.

     9 Citicasters Co. KSJO(FM), 15  FCC Rcd at 1909215 FCC  Rcd 
19091, 19092 (EB 2000)citing San Francisco Century Broadcasting, 
L.P., 8 FCC Rcd 498 (1993).

     10 See, e.g., KGB, Inc.,  (KGB-FM), 7 FCC Rcd 3207  (1992), 
forfeiture reduced  13 FCC  Rcd 16396  (1998)(``Candy  Wrapper'' 
song, which includes  lyrics such as  ``my Butterfinger went  up 
her  tight  little  Kit   Kat'').   See  also,  Great   American 
Television and Radio  Company, Inc.  (WFBQ(FM)/WNDE(AM)), 6  FCC 
Rcd 3692, 3693 (MMB 1990); WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 3704 
(MMB 1989).   

     11  Indecency Policy Statement, 16 FCC Rcd at 8009.

     12 See Citicasters  Co. (KSJO(FM)),  15 FCC  Rcd 19095  (EB 
2000), where  the Enforcement  Bureau rejected  a claim  by  the 
licensee  that   the  broadcast  of  a  program  on  the  proper 
technique for performing oral sex  was not indecent because  Dr. 
Terry, a sex  therapist and certified  clinical sexologist,  was 
engaged in a  clinical discussion of  the subject.   There,  the 
Bureau found that the disc jockeys' invitation to have Dr. Terry 
use a prop on a radio program, combined with their laughter  and 
statements (such as ``oh yeah,  baby'') while she conducted  the 
demonstration revealed that the material was intended to  pander 
and titillate as opposed to facilitating a clinical discussion. 

     13 Id.

     14   Citicasters Co.(KSJO(FM)  ), 15 FCC  Rcd at 19091  (EB 
2000) 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).

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

     16  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 Guidelines); 47  C.F.R. 

     17   Forfeiture Guidelines, 12 FCC Rcd at 17110.

     18 47 C.F.R.  0.111, 0.311 and 1.80.

     19 See 47 C.F.R.  1.1914.