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

In the Matter of                )  
                                )  File No. EB-00-IHD-0079
The KBOO Foundation             )  NAL/Acct.             No. 
200132080056
                                )  Facility ID # 65755
Licensee of Noncommercial Educational   )    
Station KBOO-FM, Portland, OR   )


                MEMORANDUM OPINION AND ORDER


   Adopted:  February 20, 2003          Released:   February 
20, 2003


By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.   In this Order, we rescind the Notice of Apparent 
Liability (``NAL'') in this proceeding, which found that The 
KBOO Foundation, licensee of noncommercial Station KBOO-FM, 
Portland, Oregon, 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 indecent language.1  
Based on our review of The KBOO Foundation's response and 
supplemental response to the NAL, we conclude that the 
licensee did not violate the applicable statute or the 
Commission's indecency rule, and that no sanction is 
warranted.  

                       II.  BACKGROUND

     2.   The Commission received a complaint alleging that 
KBOO-FM broadcast indecent material on October 20, 1999 
between 7:00 p.m. and 9:00 p.m. during the ``Soundbox.''  
The complainant submitted a tape containing allegedly 
indecent material that aired on the ``Soundbox'' on that 
date.  After reviewing the complainant's tape, the staff of 
the Enforcement Bureau issued a letter of inquiry to The 
KBOO Foundation, the licensee of the station involved.  
       
     3.   On May 17, 2001, after reviewing the licensee's 
response to the letter of inquiry, the Enforcement Bureau 
(``Bureau'') issued a Notice of Apparent Liability 
(``NAL''), which found that ``Your Revolution,'' material 
broadcast during the October 20, 1999 ``Soundbox'' program, 
apparently violated the Commission's indecency rule.  The 
Bureau proposed a monetary sanction of the base forfeiture 
amount of $7,000. 

     4.   The KBOO Foundation challenges the NAL and argues 
that a forfeiture should not be imposed.2  The  KBOO 
Foundation asserts that based upon the song's entire 
context, ``Your Revolution'' is not actionably indecent and 
that any other analysis is contrary to the free speech 
protections afforded to broadcasters under the 
Constitution's First Amendment. The KBOO Foundation asks 
that the proposed monetary forfeiture be rescinded. 

                      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.3  In 
contrast, federal courts have held that indecent speech is 
protected by the First Amendment.4  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.5  However, the First Amendment is a critical 
constitutional limitation that demands we proceed cautiously 
and with appropriate restraint.6 Consistent with a 
subsequent statute and case law,7 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.8  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.9 

     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.  
``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. 

     8.    Applying the definition of broadcast indecency, 
we note first that it is undisputed that KBOO-FM aired 
material that describes sexual activity.  Thus, the NAL 
correctly determined that the material the KBOO Foundation 
aired during the ``Soundbox'' program was sexual in nature 
and warranted scrutiny.  However, based on our review of the 
record developed in response to the NAL, we now conclude 
that the material is not patently offensive and therefore 
not indecent.  

     9.   The NAL acknowledged that the contemporary social 
commentary in ``Your Revolution'' is a relevant contextual 
consideration,10 but nevertheless concluded that the 
broadcast of the song was apparently indecent.  While this 
is a very close case, we now conclude that the broadcast was 
not indecent because, on balance and in context, the sexual 
descriptions in the song are not sufficiently graphic to 
warrant sanction.  For example, the most graphic phrase 
(``six foot blow job machine'') was not repeated.  Moreover, 
we take cognizance of the fact presented in this record that 
Ms. Jones has been asked to perform this song at high school 
assemblies.  While not controlling, we find that this is 
evidence to be considered when assessing whether material is 
patently offensive.  In sum, we find that The KBOO 
Foundation has demonstrated that the lyrics of ``Your 
Revolution,'' measured by contemporary community standards, 
are not patently offensive and therefore not indecent.   
Accordingly, we rescind the NAL.

     10.  In light of our decision rescinding the NAL, we 
dismiss as moot Sarah Jones's informal request filed October 
2, 2002.


                    IV.  ORDERING CLAUSES

     11.       In  view   of  the  foregoing,   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 May  17, 2001 
Notice of  Apparent Liability  for Forfeiture issued  to The 
KBOO Foundation, licensee  of noncommercial Station KBOO-FM, 
is hereby RESCINDED.  

     12.  IT IS FURTHER ORDERED That, the informal request, 
filed pursuant to 47 C.F.R.  1.41, by Sarah Jones on 
October 2, 2002, IS HEREBY DISMISSED AS MOOT.   

     13.       IT IS FURTHER ORDERED THAT a copy of this 
MEMORANDUM OPINION AND ORDER And FORFEITURE ORDER shall be 
sent by Certified Mail -- Return Receipt Requested to John 
Crigler, Esq., Counsel for The KBOO Foundation, Garvey, 
Schubert & Barer, 1000 Potomac Street, N.W., Fifth Floor, 
Washington, DC  20007 and to The KBOO Foundation, 20 S.E. 
8th Ave., Portland, Oregon, 97214.  
          
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    
     

                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1   The KBOO Foundation, Notice of Apparent Liability, 16 
FCC Rcd 10731 (EB 2001).  

2   We note that The American Civil Liberties Union of 
Oregon and the American Civil Liberties Union of the 
National Capital Area (collectively, the ACLU) filed a 
Memorandum in support of The KBOO Foundation's initial 
response to the NAL.  We treat this pleading as an amicus 
curiae brief.  The ACLU's Memorandum raises essentially the 
same arguments presented in The KBOO Foundation's response.  
The KBOO Foundation also filed a supplement to its response 
to the NAL on February 6, 2002.  In addition, on October 2, 
2002,  Sarah Jones, author of ``Your Revolution,''  
submitted an informal request, pursuant to 47 C.F.R.  1.41, 
asking that the Commission rescind the NAL and issue a 
declaratory ruling that ``Your Revolution'' is not 
actionably indecent.  We dismiss Ms. Jones's informal 
request as moot in light of our action here.

3  See 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). 

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

5  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'').

6 ACT I, supra note 5, 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).

7  Public Telecommunications Act of 1992, Pub. L. No. 356, 
102nd Cong., 2nd Sess. (1992); ACT III, supra note 5.

8  In FCC v. Pacifica Foundation, the Court quoted the 
Commission's definition of indecency with apparent approval.  
FCC v. Pacifica Foundation, supra note 5, 438 U.S. at 732.  
In addition, the D.C. Circuit Court of Appeals upheld the 
definition against constitutional challenges.  ACT I, supra 
note 5, 852 F.2d at 1339; ACT II, supra note 5, 932 F.2d at 
1508; ACT III, supra note 5, 58 F.3d at 657.

9  ACT III, supra note 5.

10 See Infinity Broadcast Corporation of Pennsylvania, 3 FCC 
Rcd 930, 932-33 (1987) (subsequent history omitted).