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


In the Matter of                   )   File No. EB-02-IH-0715
                                  )   FRN: 0003245347
ENTERCOM SACRAMENTO LICENSE, LLC   )   NAL/Acct. No.  200432080020
                                  )   Facility ID No. 20354
Licensee of Station KRXQ(FM),      )
Sacramento, California             )



         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  September 22, 2004     Released:  October 15, 2004

By the Commission:  Commissioners Copps and Martin approving 
               in  part,  concurring  in  part  and  issuing 
               separate statements.                   

I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for 
Forfeiture (``NAL''), issued pursuant to Section 503(b) of 
the Communications Act of 1934, as amended (the ``Act''), 
and Section 1.80 of the Commission's rules,1 we find that 
Entercom Sacramento License, LLC (``Entercom''), licensee of 
Station KRXQ(FM), Sacramento, California, broadcast indecent 
material on two  separate occasions, in apparent willful and 
repeated violation of 18 U.S.C.  1464 and 47 C.F.R.  
73.3999.  Based upon our review of the facts and 
circumstances in this case, we conclude that Entercom is 
apparently liable for a forfeiture in the maximum amount of 
Fifty-Five Thousand Dollars ($55,000). 

II.  BACKGROUND

     2.   This proceeding arises out of a series of written 
complaints from a listener alleging that Station KRXQ(FM) 
broadcast indecent material during segments of the ``Rob, 
Arnie & Dawn In The Morning Show'' (the ``RA&D Show'') 
between 7:00 a.m. and 10:00 a.m. on various dates in 2002 
and 2003.2  After reviewing the complaints, audio tapes, and 
transcripts provided by the Complainant, the Enforcement 
Bureau directed a letter of inquiry (``LOI'') to Entercom 
requiring further information about program segments that 
Station KRXQ(FM) allegedly broadcast on September 13, 2002 
(``Segment 1''), and January 17, 2003 (``Segment 2'').3 

     3.   Entercom timely responded to the LOI.4  Entercom 
states in its Response that it did not retain a recording of 
the program that Station KRXQ(FM) broadcast on September 13, 
2002.  In the absence of a recording of its own, Entercom 
maintains that it cannot conclusively determine that the 
specific material set forth in Segment 1 actually was 
broadcast over Station KRXQ(FM) on that date.5  
Additionally, although Entercom concedes that Station 
KRXQ(FM) has aired segments during the RA&D Show in which 
``Arnie'' speaks in a young boy's voice, it maintains that 
the transcript of the material contained in Segment 1, in 
which one of the announcers speaks in a child's intonation, 
omits dialogue among the show hosts that is typical of such 
segment routines, thus creating a ``misimpression concerning 
the totality and context'' of the material that was 
broadcast.6  By contrast, Entercom confirms in its Response 
that the material contained in Segment 2 was indeed 
broadcast over Station KRXQ(FM), albeit on January 23, 2003, 
not January 17, 2003, as alleged by the Complainant.7  

     4.   Entercom argues that none of the material cited by 
the Complainant to be indecent satisfies the Commission's 
definition of indecency.  In this regard, Entercom claims 
that the material contained in Segment 1 was fleeting and 
did not have an inescapable sexual import; and the material 
contained in Segment 2 was deliberately oblique and far less 
explicit than material previously deemed acceptable by the 
Commission.8  In addition, Entercom maintains that the 
Commission's indecency definition is unconstitutionally 
vague and overbroad.9  Finally, Entercom claims that, 
because Station KRXQ(FM) generally garners relatively high 
ratings in the Sacramento, California, market, the 
sensitivities of a single complainant do not reflect the 
contemporary standards of the Sacramento listening 
community.10    

III.  DISCUSSION

     5.   The Federal Communications Commission is 
authorized to license radio and television broadcast 
stations and is responsible for enforcing the Commission's 
rules and applicable statutory provisions concerning the 
operation of those stations.  The Commission's role in 
overseeing program content is very limited.  The First 
Amendment to the United States Constitution and Section 326 
of the Act prohibit the Commission from censoring program 
material and from interfering with broadcasters' freedom of 
expression.11  The Commission does, however, have the 
authority to enforce statutory and regulatory provisions 
restricting indecency and obscenity.  Specifically, it is a 
violation of federal law to broadcast obscene or indecent 
programming.  Title 18 of the United States Code, Section 
1464, prohibits the utterance of ``any obscene, indecent or 
profane language by means of radio communication.''12  In 
addition, consistent with a subsequent statute and court 
case,13 section 73.3999 of the Commission's rules provides 
that radio and television stations shall not broadcast 
indecent material during the period 6 a.m. through 10 p.m.14

     6.   As an initial matter, we find that both segments 
that are the subject of this NAL were indeed broadcast over 
Station KRXQ(FM) during the restricted time period.  
Entercom does not dispute that Station KRXQ(FM) broadcast 
the RA&D Show on the dates and at the time periods in 
question.  Entercom claims  that it cannot determine with 
absolute certainty that Station KRXQ(FM) broadcast the 
specific material contained in Segment 1 because it did not 
retain a recording or transcript of that program.15  Based 
upon the evidence before us, including Entercom's failure to 
refute the complainant's allegations, we find that Station 
KRXQ(FM) broadcast the material contained in Segment 1, as 
alleged.16  We further conclude that Station KRXQ(FM) 
broadcast the material contained in Segment 2 during the 
restricted hours of the day.  Entercom acknowledges as much, 
although it states that the material contained in Segment 2 
was broadcast on January 23, 2003, not on January 17, 2003, 
as alleged.17  We will accept Entercom's date as that of the 
broadcast.

     7.   Any consideration of government action against 
allegedly indecent programming must take into account the 
fact that such speech is protected under the First 
Amendment.18  The federal courts consistently have upheld 
Congress's authority to regulate the broadcast of indecent 
material, as well the Commission's interpretation and 
implementation of the governing statute.19  Nevertheless, 
the First Amendment is a critical constitutional limitation 
that demands that, in indecency determinations, we proceed 
cautiously and with appropriate restraint.20  

     8.   The Commission defines indecent speech as language 
that, in context, depicts or describes sexual or excretory 
activities or organs in terms patently offensive as measured 
by contemporary community standards for the broadcast 
medium.21  

     Indecency   findings   involve    at   least   two 
     fundamental  determinations.  First,  the material 
     alleged  to  be  indecent  must  fall  within  the 
     subject matter scope of our indecency definition -
     - that  is, the  material must describe  or depict 
     sexual or excretory  organs or activities. Second, 
     the  broadcast  must   be  patently  offensive  as 
     measured by  contemporary community  standards for 
     the broadcast medium.22

     9.   Turning to the instant case, we begin our analysis 
with an examination of whether the material that was 
broadcast, in context, depicts or describes sexual or 
excretory organs or activities.  We find that it does.  
Listeners tuning into Station KRXQ(FM) at the times when the 
two segments were broadcast were exposed to a monologue 
involving contact of a sexual nature with a child; a 
dialogue about various sexual activities, including methods 
of engaging in sexual intercourse; and multiple references 
to sexual organs.  Accordingly, we conclude that each of the 
segments at issue describes sexual or excretory organs or 
activities, satisfying the first prong of our indecency 
analysis.  

     10.  Having satisfied the first prong, we now turn to 
an analysis of whether the material in each of the three 
segments subject to this NAL satisfies the second prong of 
the Commission's two-part indecency analysis - that is, 
whether the broadcasts were patently offensive as measured 
by contemporary community standards for the broadcast 
medium.23  In our assessment of whether broadcast material 
is patently offensive, ``the full context in which the 
material appeared is critically important.''24  Three 
principal factors are significant to this contextual 
analysis: (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.25  In examining these 
three factors, we must weigh and balance them to determine 
whether the broadcast material is patently offensive because 
``[e]ach indecency case presents its own particular mix of 
these, and possibly, other factors.''26  In particular 
cases, the weight of one or two of the factors may outweigh 
the others, either rendering the broadcast material patently 
offensive and consequently indecent,27 or, alternatively, 
removing the broadcast material from the realm of 
indecency.28  

     11.  We turn now to an analysis of these factors as 
they relate to each segment to determine whether the 
material that was broadcast, taken in context, is patently 
offensive as measured by contemporary community standards 
for the broadcast medium. 

     Segment 1:  The September 13, 2002 segment 
     involved one of the program hosts playing the role 
     of a young boy describing how his father wanted to 
     take photographs of him in the nude and show the 
     youngster his erect penis.  Although the segment 
     employed euphemisms (``Daddy's going to take me to 
     a restaurant `cause he wants to take pictures of 
     me in my birthday suit.  Daddy's giving me a 
     submarine.  He says he's giving me something long, 
     hard, and full of seaman.''), the sexual import of 
     the material is unmistakable.  Although the 
     segment was relatively brief, there is no question 
     that its purpose was to shock and titillate, and 
     is similar to other patently offensive material 
     involving graphic references to sexual activity 
     with children, which were found to be indecent.29  
     Under these circumstances, we need not find that 
     the sexual references were repeated at length 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.30   

     Segment 2:  The January 23, 2003, segment involved 
     a graphic and detailed discussion of various 
     methods that men may employ to disgrace, degrade 
     and humiliate women before, during, and after 
     sexual intercourse.  The discussion went on for a 
     considerable length of time about descriptions of 
     sexual or excretory organs and activities.  The 
     discussion of each method, for which a descriptive 
     name was given, was interspersed with laughter as 
     well as expressions of repulsion.  The discussion 
     was shocking for its depravity and clearly 
     intended as such.  

     Entercom maintains that the discussion was 
     ``deliberately oblique'' and less explicit than 
     other material that the Commission has deemed 
     acceptable.  We disagree.  The discussion was not 
     oblique in any sense of the word.  For example, at 
     one point, one of the hosts advises how a man may 
     ``proceed to engage in the most violent and 
     forceful sex imaginable . . . calling her the most 
     obscene names you can come up with, and slapping 
     her.''31  At another point in the broadcast, the 
     host suggests that after intercourse, ``[y]ou put 
     your ass right over her face while she's sleeping 
     . . . and break wind.''32  Elsewhere, the host 
     describes for the listening audience, ``while 
     taking the girl from behind, the guy reaches 
     around, grabs her breasts as hard as he can . . . 
     and screams out another girl's name, then he holds 
     on for the wild bronco ride.''33  In yet another 
     part of the same broadcast, the host suggests 
     that, while having sex in a bathroom, ``you're 
     engaged in, um, `from behind action' . . . then 
     when ready, he sticks her head into a toilet, 
     which contains a recently deposited log cabin, 
     simultaneously flushing it . . . you hold her head 
     there.''34  The host also describes how ``[o]nce 
     again, you're taking her from behind . . . then 
     the man wraps his arms around her throat . . . 
     placing her, again without her permission, placing 
     her in the traditional ``sleeper'' wrestling hold 
     . . . . cutting off air to the carotid artery . . 
     . . He maintains the hold until she is unconscious 
     . . . reviving her with his own special form of 
     smelly salts [farting noise] on her nose.''35 This 
     discussion was unquestionably graphic, not 
     oblique. 

     We also reject Entercom's contention that this 
     material cannot be found indecent because there 
     are other cases referencing topics such as 
     masturbation, and anal and oral sex in which no 
     enforcement action was taken.  In support of this 
     argument, Entercom cites, among other things, two 
     unpublished Enforcement Bureau staff decisions, in 
     which there were references to ``giving head''36 
     and ``finger banging your boyfriend.''37  However, 
     the material in Segment 2 is more graphic and 
     explicit than the language cited in those 
     decisions.  Moreover, the use of the term ``finger 
     banging'' was brief and fleeting, which is not the 
     case with the material at issue here.38  

     We believe the material at issue in Segment 2 is 
     strikingly similar to material that the Commission 
     has previously found to be actionably indecent.  
     See Infinity Broadcasting Operations, Inc., 18 FCC 
     Rcd 6915 (2003).  As we did in that Infinity 
     decision, we find the tone of the material in the 
     instant case to be extraordinarily vulgar, 
     extremely lewd, and profoundly unfit for broadcast 
     when children may be in the audience.  For these 
     reasons, we find that the broadcast in Segment 2 
     was patently offensive as measured by contemporary 
     community standards for the broadcast medium.

     12.  Entercom has acknowledged that it broadcast the 
RA&D Show between 6 a.m. and 10 p.m., a time frame relevant 
to an indecency determination.39  Because there was a 
reasonable risk that children may have been in the audience 
when the material in each of the two segments was broadcast, 
the material that was broadcast is legally actionable.  By 
broadcasting this material over Station KRXQ(FM), Entercom 
apparently willfully and repeatedly violated the 
prohibitions in the Act and the Commission's rules against 
broadcast indecency.

     13.  We reject Entercom's claim that, because this 
proceeding was precipitated by complaints from a lone 
individual, and Station KRXQ(FM) generally enjoys high 
ratings, the  contemporary community standards of the 
Sacramento, California, listening community must, as a 
consequence, embrace the station's programming.40  Whether 
particular material is actionably indecent does not turn on 
whether the station that broadcast it (or the program) 
happens to be popular in its particular market.41  Indeed, 
the fact that Station KRXQ(FM) draws a significant number of 
Sacramento area listeners serves to increase the likelihood 
that more children were among those who may have heard the 
indecent broadcasts.   

     14.  Finally, there is no merit to Entercom's argument 
that the Commission's indecency definition is 
unconstitutionally vague and overbroad.42  The Commission 
has rejected similar constitutional challenges to our 
broadcast indecency standards, including constitutional 
challenges based on Reno v. ACLU, a case which Entercom 
cites and which invalidated an indecency standard for the 
Internet.43  Moreover, the courts have rejected similar 
claims that the broadcast of indecent material may not be 
restricted for the protection of children.44   

     15.  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. 45  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 over Station KRXQ(FM) on September 13, 
2002, and January 23, 2003.

     16.  The Commission's Forfeiture Policy Statement sets 
a base forfeiture amount of $7,000 for the transmission of 
indecent or obscene materials.46  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.''47  Based upon our thorough review of the 
record, including the egregious nature of the misconduct and 
Entercom's prior history of violations,48 we conclude that 
an upward adjustment of the forfeiture amount to the 
statutory maximum of $27,500 is warranted in this case for 
each instance in which Entercom apparently violated 18 
U.S.C.  1464 and 47 C.F.R.  73.3999.49  Thus, we find that 
the appropriate forfeiture amount is $55,000 (2 x $27,500).  
We take this opportunity to note that similar violations of 
this nature by Entercom could well lead to more severe 
enforcement action, including commencement of license 
revocation proceedings.50  

IV.  ORDERING CLAUSES

     17.  ACCORDINGLY, IT IS ORDERED, that the complaints 
filed against Entercom Sacramento License, LLC, Licensee of 
Station KRXQ(FM), Sacramento, California, dated September 9, 
September 13, and October 5, 2002; and February 26, and 
March 10, 2003, ARE GRANTED to the extent indicated herein.

     18.  IT IS ORDERED, pursuant to Section 503(b) of the 
Communications Act of 1934, as amended, and Section 1.80 of 
the Commission's rules,51 that Entercom Sacramento License, 
LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR 
FORFEITURE in the amount of Fifty-Five Thousand Dollars 
($55,000) for willfully violating 18 U.S.C.  1464 and 
Section 73.3999 of the Commission's rules.

     19.   IT IS FURTHER ORDERED, pursuant to Section 1.80 
of the Commission's rules, that within thirty (30) days of 
the release of this NAL, Entercom SHALL PAY the full amount 
of the proposed forfeiture or SHALL FILE a written statement 
seeking reduction or cancellation of the proposed 
forfeiture.

     20.  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 SHALL INCLUDE the FCC Registration Number (FRN) 
referenced above and also SHALL NOTE the NAL/Acct. No. 
referenced above.

     21.  The response, if any, SHALL BE MAILED to William 
H. Davenport, Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 445 
12th Street, S.W, Room 3-B443, Washington DC  20554, and 
SHALL INCLUDE the NAL/Acct. No. referenced above.

     22.  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.

     23.  Requests for payment of the full amount of the 
forfeiture proposed in this NAL under an installment plan 
SHALL BE SENT to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.52 

     24.  Under the Small Business Paperwork Relief Act of 
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the 
FCC is engaged in a two-year tracking process regarding the 
size of entities involved in forfeitures.  If you qualify as 
a small entity and if you wish to be treated as a small 
entity for tracking purposes, please so certify to us within 
thirty (30) days of this NAL, either in your response to the 
NAL or in a separate filing to be sent to the Investigations 
and Hearings Division.  Your certification should indicate 
whether you, including your parent entity and its 
subsidiaries, meet one of the definitions set forth in the 
list provided by the FCC's Office of Communications Business 
Opportunities (OCBO) set forth in Attachment C of this NAL.  
This information will be used for tracking purposes only.  
Your response or failure to respond to this question will 
have no effect on your rights and responsibilities pursuant 
to Section 503(b) of the Communications Act.  If you have 
questions regarding any of the information contained in 
Attachment B, please contact OCBO at (202) 418-0990.

     25.  IT IS FURTHER ORDERED that a copy of this NAL 
shall be sent, by Certified Mail/Return Receipt Requested, 
to Entercom's counsel, Brian M. Madden, Esq., Leventhal, 
Senter & Lerman, PLLC, 2000 K Street, N.W., Suite 600, 
Washington, DC  20006-1809. 

                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary                        ATTACHMENT A

                     September 13, 2002


ARNIE [affecting the tone of  a young boy]:  ``Daddy's going 
to take me to a restaurant  `cause he wants to take pictures 
of me in  my birthday suit.  Daddy's giving  me a submarine.  
He says  he's giving  me something long,  hard, and  full of 
seaman.''


                         END OF SEGMENT
                        ATTACHMENT B

                      January 23, 2003


DAWN:  Sweetheart.

ROB:  So.  And you might, you might have to invest some time 
to get her to the point where you can then perform the Rose-
Creeper, which is,  you begin the event  by very seductively 
brushing a long-stem rose all along her body . . . 

DAWN:  Oooh.

ROB:  . . . you're telling  her how beautiful she is, you're 
caressing her, you're kissing her body, OK, and I mean it is 
very romantic.

DAWN:  And you got to picture a sweet little mousey girl.

ARNIE:  Uh huh.

ROB:  You get her in the  mood for love-making, and then you 
proceed  to engage  in  the most  violent  and forceful  sex 
imaginable, while  whipping her  with the rose,  calling her 
the most  obscene names you  can come up with,  and slapping 
her.  [thudding sound]

DAWN:  Oh my God!  That will ruin someone like that.

ROB:  Or turn  her into to a complete slut,  well that would 
be ruining her, yeah.

DAWN:  Oh my God, that would  so give her low self-esteem or 
something.

ARNIE:  [snicker]   Um, I don't  like the whipping  with the 
rose . . . 

ROB:  It's kind of dopey  . . . [laughter] 

ARNIE:  Yeah, that's . . .  bad.

ROB:  . . . but a  mousey girl would think that was really . 
. . or a virgin or something like that. 

DAWN:  Come on.  Yeah.  No that

ARNIE:  I don't like the whipping with the rose.

DAWN:  Oh God!  And the . . . 

ARNIE:  Everything else, though.

DAWN:  . . . and the betrayal, she thinks this guy likes her 
and they are going to make  sweet passionate love and like . 
. .

ROB:  And he's calling her the worst thing.

DAWN:  .  . . and  the whole time  he was betraying  her and 
conning her.

ARNIE:  And videotaping it for his friends to see.

ROB:  Or they're in the closet watching.  Who knows?

ARNIE: Um hum.

ROB:  I mean, you can probably  add to it by having them pop 
out at the end.

ARNIE:  Could you watch?

ROB:  Oh yeah!  Yeah.

ARNIE:  Could you watch it with out laughing?

ROB:  No.

ARNIE:  Well, OK.

ROB:  No.  

ARNIE:  I would  bust up too hard in the  closet, I would be 
laughing so hard when he's . . 

DAWN:  [gasp] Arnie!

ARNIE:  It would be funny.

ROB:  Yeah.

ARNIE:  It would be funny.

DAWN:   I hope,  you  know  what, I  hope  these girls  have 
brothers.

ROB:  Um.

ARNIE:  Oh yeah!  You go girl.

ROB:  One more of, you know, I'm sorry I'd . . . 

ARNIE:  Asshole.

ROB:  I'd  deemed these as  the lighthearted ones,  but Dawn 
has certainly pointed out they're not that lighthearted, but 
they certainly  are compared  to what I'm  going to  get to.  
Last one  of these is ``Resuscitation;''  it's simply called 
``Resuscitation,'' this one's funny, come on.

DAWN:  That's what you said about the first one.

ROB:   OK, you  wait  for her  to fall  asleep,  so this  is 
obviously a girl that you've already had sex with, right.

ARNIE:  OK.

ROB: [laughter]  Then you, [laughter] . . . 

DAWN:  Rob.

ROB:  [laughter] . . . this  is funny.  You're going to find 
this  funny.  You  put your  ass right  over her  face while 
she's sleeping [farting noise] and break wind.

DAWN:  [laughter]  That is so wrong.

ROB:  [laughter]  I mean that one's OK.

DAWN:  No, that's wrong.  [laughter]

ARNIE:  If she's a deep sleeper . . .  

DAWN:  [giggle]

ROB:   Well  apparently,  if  I  understand  the  web  sites 
correctly, which no,  I am not going to be  giving those out 
on the air  because they're so disturbing, um,  the trick to 
getting more  points is you have  to do it and  it wakes her 
up.

DAWN:  [gasp]

ROB:  It has to be such a, . . . 

DAWN:  OK, that is degrading. 

ROB:  It is.

DAWN:   You just  gave yourself  to this  guy, and  now he's 
farting in your face.

ROB:   Um. Yeah.   That usually  doesn't happen  until after 
you're married.

DAWN:  Exactly.   And at least  married men do it  under the 
covers  and  then just,  like,  ``woo,''  and then  fan  the 
sheets.

ARNIE:  Oh,  but the  bad thing  is [laughter]  I'm thinking 
about the poor guy who's done this and pushed too hard.

DAWN:  [wailing]

ROB:  Now I do want to  point out, um, we're going to get to 
one . . .

DAWN:  Yes.  I get it.

ROB:  .  . .  like that, but  there are  numerous disgusting 
things  that  are  involved and  unfortunately  that  bodily 
function that I really have a problem with.

ARNIE:  I understand.  Yeah.

ROB:  But, let's move on now toward, what I called this next 
Section . . . 

DAWN:  [laughter] That's so mean.

ROB:  .  . .  I have called  this next  Section ``Mainstream 
Mean,'' so it's definitely mean,  but it's not nearly as bad 
as our last grouping.

ARNIE:  OK. 

ROB:  We'll start with the ones we already told you about as 
a preview this  week, ``The Bronco.''  This  is while taking 
the  girl from  behind, the  guy reaches  around, grabs  her 
breasts as hard as he can . . .

DAWN:  Ouch!

ROB:  .  . . and  screams out  another girl's name,  then he 
holds on for the wild bronco ride.

DAWN:  Abuse and degrading.

ROB:  And  of course ``The  Rodeo'' that we told  you about, 
which  is  just like  that,  only  rather than  calling  out 
another girl's  name, he has  six of his friends  burst into 
the room laughing, which still causes the ``bucking bronco'' 
effect.

DAWN:  Yes, 'cause she's trying  to get him off, because now 
all  the friends  are  in  the room,  which  is, of  course, 
degrading.

ROB:   Let's  move  on   to  some  more  rather  disgusting, 
``Mainstream Mean'' things that fraternity boys are doing to 
get  into   their  frats.   There  is   ``The  Kennebunkport 
Surprise.''  While on  the way  down to  the ``Y,''  the man 
secretly  fills his  cheeks with  New England  clam chowder, 
then, while  screaming in disgust,  he hurls it  between her 
legs.  

DAWN:  That's . . . Jesus.    

ARNIE:  [laughter]  Where does he get the clam chowder?

ROB:  You've got to have this set up ahead of time, and, you 
know, where you can reach for something and really get it in 
your mouth quick, and then you know you start with the ``Y'' 
and after a couple seconds.  Arggh . . . 

DAWN:  That's childish.

ROB:  Yes.

DAWN:  That's childish.

ARNIE:  Now see, that, to me, would ruin a woman.

DAWN:  Yes.  [laughter]

ROB:  That  would.  You're really  not going to  enjoy ``The 
New  York Style  Taco,''  which  is just  like  what I  just 
described  ``The Kennebunkport,''  but rather  than use  the 
chowder, the man simply barfs between her legs.  

ARNIE:  [laughter]

DAWN:   That  girl is  ruined  forever.   That is  not,  I'm 
serious she, girls  that have that done will  never ever let 
another man at the ``Y.''

ROB:  You betcha.

ARNIE:  And  you know  what?  To other  men, we  would thank 
this guy because then we don't have to do any work.

DAWN:  Arnie, it shouldn't be work, you should love it.

ROB:  I personally do love it and enjoy it but I understand.

ARNIE:  I don't mind.  I don't  mind . . .  I'm just looking 
out for the guys out there who don't do it.  [laughter]

DAWN:  OK, another reason not to date Arnie.

ARNIE:  Rob,  if you're a  guy, how do you  induce yourself?  
Is it the finger in the throat or the . . . ?

ROB:  Um hm.   Well, a guy like me with a  gag reflex, all I 
would have to do is, yeah, the finger down the throat, or if 
I had  a, like a spoon  or something, .  . . that you  go if 
you've  been drinking  it's  that much  easier.  But  you're 
right; for some  guys it would be tough and  maybe they have 
to go to ipecac, which is a ``vomitant.''

DAWN:  Oh my God!  The poor girls.
 
ROB:  OK.  One  more in the ``Mainstream  Mean'' Section and 
then  we will  get to  the worst.   The ``Mainstream  Mean'' 
final one is  ``The Ram.''  Simply called  ``The Ram,'' this 
is while enjoying her from behind  (I noticed a lot of these 
things occur with that), now  you're standing up from behind 
this time. 

ARNIE:  OK.

ROB:  Ah, he takes one of  his hands and just starts ramming 
her head against the wall [DAWN gasps] in rhythmic motion.

DAWN:  Abuse.

ROB:  Yeah, that's pretty heinous.

DAWN:  That's pretty heinous.

ROB:  No, they're all heinous.  You've made that clear to me 
and I agree  with you.  I agree with you  and I'm doing this 
in degree and I think that one gets, like, an 8.

DAWN:  How  are there this  many men  that want to  commit - 
want to be this abusive - to a woman?

ROB:   'Cause they're  young and  they've grown  up in  this 
society where  it's OK, and  you know, they  haven't learned 
yet.

DAWN:   What a  pussy.  What  a freaking  bastard if  you do 
something like to  a woman.  I'm serious.  What  kind of man 
are you?

ARNIE:  Now Rob, this is just ``Mainstream Mean.'' ?

ROB:  That  was the last  one of ``Mainstream Mean,''  as we 
move on to the absolute worst.

ARNIE:  Does it say how hard?

DAWN:  Arnie!

ARNIE:  I'm just wondering.

DAWN:  It doesn't matter, . . . [laughter]

ARNIE:  It's a question.

DAWN:  . . .she's not asking for it. 

ROB:  [laughter]   And again you  may disagree with  me that 
these are the worst, I just  found them to be yesterday as I 
was  rewriting  this  for  ``airable''  content.   Now,   we 
already  told you  earlier in  the  week about  a couple  of 
these: ``The  Walrus,'' which  involves wrapping up  an oral 
pleasuring session  in the  traditional [farting  noise] way 
and then  holding her nose  and pinching her  lips together, 
which causes an  appearance strikingly similar to  that of a 
tusked walrus.

DAWN:  That always feels good when you can't breathe.

ROB:  Yeah.  That's no good.  And ``The Cold Lunch'' we told 
you about . . . 

ARNIE:  My personal favorite one of all time.

ROB:  . . .which involves  her orally pleasuring her man and 
he then vomits on her head,  and I did find that to be worse 
than ``The New York Style Taco'' for some reason.

ARNIE:  Now.

ROB:  On her head.

ARNIE:  Do they have ``The Kennebunkport'' one of those?

ROB:  Oh, where you use clam chowder?

ARNIE:  Yeah, could you possibly use clam chowder in that?

ROB:  Maybe.

DAWN:  You know, I prefer clam chowder.

ROB:  Yeah.  Woof,  that's disgusting.  OK now,  um, um, the 
five new ones, and then we'll  be done with this, it will be 
posted on the web site.  Um, we're going to start with ``The 
Dirty Swirly.''

DAWN:  Oh no.

ROB:  Now, once again, you're  engaged in, um, ``from behind 
action'' . . . 

ARNIE:  Um hm.

ROB:  .  . .  although it  must be done  in a  bathroom.  An 
apartment bathroom, not a public one or whatever . . .

ARNIE:  Um hum.  OK.  

ROB:   . .  . then  when ready,  he sticks  her head  into a 
toilet,  which  contains  a recently  deposited  log  cabin, 
simultaneously  flushing it,  and that's  where you  get the 
``dirty swirly.''   But you know and . . . 

DAWN:  [gasps]

ROB:  . . . you hold her head there.

DAWN:  Oh my God!

ROB:  I  don't think  there's supposed to  be contact,  as I 
understand it, between her and the cabin, but you're . . .

DAWN:   Oh right,  they monitor  it; they're  real concerned 
about that.

ARNIE:  I've seen a Rocko film where that happened.  I don't 
know if  there was anything  in ``said toilet,'' but  I have 
seen the swirly while he's going to town.

ROB:   If that's  just a  swirly  until we  can confirm  the 
presence of the cabin, which makes it ``The Dirty Swirly.''

ARNIE:  I'll have to go back and watch that video.

ROB:   And  there  is also  the  obvious  middle-of-the-road 
version called ``The Golden Swirly.''

ARNIE:  Of course.  Of course.

DAWN:  Yes.  Oh God.  This is terrible.

ROB:  ``The Fire  Island.''  This is kind of  like that, uh, 
which  one was  it, that  ``Resuscitation'' one.   OK, she's 
sleeping, but  rather than simply  passing gas in  her face, 
you, the man, manually  pleasures himself, and then improves 
her complexion at the end  [farting noise], if you know what 
I mean, while she's still sound asleep.

DAWN:  While she's sleeping?

ROB:  Yeah.

DAWN:  Oh my God.

ROB:  Alright,  now we get to  what I believe are  the three 
really, really, really bad ones.   We're going to start with 
``The Roddy Piper,'' which is an ode to Rowdy Roddy Piper.

ARNIE:  Professional wrestler.

ROB:  This is how this one works.  Once again, you're taking 
her from behind men, then the  man wraps his arms around her 
throat,  [DAWN   gasps]  placing  her,  again   without  her 
permission,  placing  her  in  the  traditional  ``sleeper'' 
wrestling hold, . . .

ARNIE:  OK.

ROB:  . . . cutting off air to the carotid artery.

DAWN:  Oh my God!

ARNIE:  While still going to town?

ROB:  Yes.

ARNIE:  OK.

ROB:  He maintains the hold until she is unconscious . . .

DAWN:   [gasps]

ROB:  . . . and continues with his business . . . 

DAWN:  Oh my God.

ROB:  . . . reviving her with his own special form of smelly 
salts [farting noise] on her nose.  So did you get all that?

ARNIE:  Road trip.

ROB:  Road trips and very popular at Spring Break.  Those of 
you that hear all these terrible stories about Spring Break, 
here's one.   Uh, because it also  must be done on  a beach, 
that's  why it's  called ``The  Sand Bag,''  which you  will 
understand in a minute.  The man  uses a fake name, makes up 
an entire story about who he is, and talks her into sex, and 
of course uses liquor.  Picture Spring Break, a lot of women 
are there expecting casual sex.

ARNIE:  Exactly.

ROB:  And then, just prior to beginning the proceedings, he, 
without telling her, removes his condom intentionally . . . 

DAWN:  [gasps]

ROB:  . . . when he finishes . . . 

DAWN:  Oh no.

ROB:  . . .he grabs a fist full of sand, he throws it in her 
face, and he runs away.  She doesn't know who he is, where's 
he's from, can't see, can't  find him, and doesn't even know 
still what he did, and if it ``takes.''

DAWN:  Oh God.

ROB:  Now how really . . . 

ARNIE:  Wow.

DAWN:  Not only pregnancy, but diseases. 

ROB:  Um hm, and no trail.

ARNIE:  And you're messing up somebody else's life.

DAWN:  Yes.

ROB:  A whole new life.

DAWN:  Yes.

ARNIE:  Yes.

ROB:  And her and you know.

ARNIE:  Yeah.

DAWN:   Yes.  Oh!   Oh you  know  what?  There  needs to  be 
stings, you're right, I'm serious.  Oh God I'd, I would just 
love to be a cop for a day just to track down these 
m-f'ers.

ROB:  Now, the last one I saved for the last just because of 
the disgusting factor.   The last one is  called ``The Chili 
Dog.''  Now there were a lot of them like this, I just chose 
this one.

ARNIE:  OK.

ROB:   This is ``The  Chili Dog.''   This one  begins .  . . 
you'll have to  get your visual, with the man  seated on the 
girl's  chest,  while  receiving the  chug-a-lug-a-lug,  OK.  
That's a popular position, right?

ARNIE:  Um hm.

ROB:  Everybody with me on how this works?

ARNIE: Oh yes, yes, yeah.

ROB:  And  while that  is occurring, he  builds a  log cabin 
between her breasts.

DAWN:  [gasps].

 
                       END OF SEGMENT



                        Attachment C

                 FCC List of Small Entities

    As described below, a ``small entity'' may be a small 
                        organization,
   a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any  not-for-profit enterprise  that  is independently  owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties,  towns, townships, villages, 
school districts, or 
special  districts, with  a  population  of less  than  fifty 
thousand.


(3)  Small Business
Any  business   concern  that  is  independently   owned  and 
operated and 
is not  dominant in its field,  and meets the pertinent  size 
criterion described below.
  

        Industry Type          Description of Small Business 
                                      Size Standards
                  Cable Services or Systems
                              Special Size Standard - 
Cable Systems                 Small Cable Company has 400,000 
                              Subscribers Nationwide or Fewer
Cable   and  Other   Program 
Distribution                      $12.5 Million in Annual 
                                     Receipts or Less

Open Video Systems 
        Common Carrier Services and Related Entities
Wireline     Carriers    and 
Service providers 
                                 1,500 Employees or Fewer
Local   Exchange   Carriers, 
Competitive           Access 
Providers,     Interexchange 
Carriers,  Operator  Service 
Providers,          Payphone 
Providers, and Resellers


Note:   With  the  exception  of  Cable   Systems,  all  size 
standards  are expressed  in either  millions  of dollars  or 
number  of employees  and are  generally  the average  annual 
receipts  or the average  employment of  a firm.   Directions 
for   calculating  average   annual   receipts  and   average 
employment of a firm can be found in 
13 CFR 121.104 and 13 CFR 121.106, respectively.






                   International Services
International      Broadcast 
Stations






                                  $12.5 Million in Annual 
                                     Receipts or Less
International  Public  Fixed 
Radio  (Public  and  Control 
Stations)
Fixed              Satellite 
Transmit/Receive       Earth 
Stations
Fixed  Satellite Very  Small 
Aperture Terminal Systems
Mobile    Satellite    Earth 
Stations
Radio          Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary      Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                     Mass Media Services
Television Services

                              $12 Million in Annual Receipts 
                                          or Less
Low     Power     Television 
Services    and   Television 
Translator Stations
TV     Auxiliary,    Special 
Broadcast and  Other Program 
Distribution Services
Radio Services
                               $6 Million in Annual Receipts 
                                          or Less
Radio   Auxiliary,   Special 
Broadcast and  Other Program 
Distribution Services
Multipoint      Distribution  Auction Special Size Standard -
Service                       Small  Business  is  less  than 
                              $40M in  annual gross  revenues 
                              for three preceding years
           Wireless and Commercial Mobile Services
Cellular Licensees
                                 1,500 Employees or Fewer
220  MHz   Radio  Service  - 
Phase I Licensees
220  MHz   Radio  Service  -  Auction special size standard -
Phase II Licensees            Small Business is average gross 
                              revenues of  $15M  or less  for 
                              the   preceding   three   years 
                              (includes    affiliates     and 
                              controlling principals)
                              Very Small Business is  average 
                              gross revenues  of $3M or  less 
                              for the  preceding three  years 
                              (includes    affiliates     and 
                              controlling principals)
700 MHZ Guard Band Licensees


Private  and Common  Carrier 
Paging
Broadband           Personal 
Communications      Services     1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband           Personal  Auction special size standard -
Communications      Services  Small Business is $40M  or less 
(Block C)                     in annual  gross  revenues  for 
                              three previous calendar years
                              Very Small Business is  average 
                              gross revenues of $15M  or less 
                              for   the    preceding    three 
                              calendar    years     (includes 
                              affiliates   and   persons   or 
                              entities that hold interest  in 
                              such    entity    and     their 
                              affiliates)
Broadband           Personal 
Communications      Services 
(Block F)
Narrowband          Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground    Radiotelephone 
Service
800  MHz Specialized  Mobile  Auction special size standard -
Radio                         Small Business is $15M  or less 
                              average annual  gross  revenues 
                              for  three  preceding  calendar 
                              years
900  MHz Specialized  Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                       N/A
Aviation  and  Marine  Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                              Small   Business    is    1,500 
Public Safety Radio Services  employees or less
                              Small Government  Entities  has 
                              population of less than  50,000 
                              persons
Wireless    Telephony    and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                     N/A
Offshore      Radiotelephone     1,500 Employees or Fewer
Service
Wireless      Communications  Small Business is $40M  or less 
Services                      average annual  gross  revenues 
                              for three preceding years
                              Very Small Business is  average 
                              gross revenues of $15M  or less 
                              for the preceding three years 

39 GHz Service
                              Auction special  size  standard 
                              (1996) -
Multipoint      Distribution  Small Business is $40M  or less 
Service                       average annual  gross  revenues 
                              for  three  preceding  calendar 
                              years
                              Prior to Auction -
                              Small   Business   has   annual 
                              revenue of $12.5M or less
Multichannel      Multipoint 
Distribution Service              $12.5 Million in Annual 
                                     Receipts or Less
Instructional     Television 
Fixed Service
                              Auction special  size  standard 
                              (1998) -
Local             Multipoint  Small Business is $40M  or less 
Distribution Service          average annual  gross  revenues 
                              for three preceding years
                              Very Small Business is  average 
                              gross revenues of $15M  or less 
                              for the preceding three years 
                              First  Auction   special   size 
                              standard (1994) -
                              Small  Business  is  an  entity 
                              that,   together    with    its 
                              affiliates, has no more  than a 
218-219 MHZ Service           $6M  net   worth   and,   after 
                              federal income taxes (excluding 
                              carryover losses)  has no  more 
                              than $2M in annual profits each 
                              year for the previous two years
                              New Standard - 
                              Small Business is average gross 
                              revenues of  $15M  or less  for 
                              the   preceding   three   years 
                              (includes    affiliates     and 
                              persons or  entities that  hold 
                              interest  in  such  entity  and 
                              their affiliates)
                              Very Small Business is  average 
                              gross revenues  of $3M or  less 
                              for the  preceding three  years 
                              (includes    affiliates     and 
                              persons or  entities that  hold 
                              interest  in  such  entity  and 
                              their affiliates)
Satellite   Master   Antenna 
Television Systems                $12.5 Million in Annual 
                                     Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees     Small Business is average gross 
                              revenues of  $15M  or less  for 
                              the   preceding   three   years 
                              (includes    affiliates     and 
                              persons or  entities that  hold 
                              interest  in  such  entity  and 
                              their affiliates)
                              Very Small Business is  average 
                              gross revenues  of $3M or  less 
                              for the  preceding three  years 
                              (includes    affiliates     and 
                              persons or  entities that  hold 
                              interest  in  such  entity  and 
                              their affiliates)




                        Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                          or Less
Radio     and     Television 
Broadcasting   and  Wireless 
Communications     Equipment      750 Employees or Fewer
Manufacturers
Audio  and  Video  Equipment 
Manufacturers
Telephone          Apparatus 
Manufacturers        (Except     1,000 Employees or Fewer
Cellular)
Medical    Implant    Device      500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                          or Less
Nursing Homes                     $11.5 Million in Annual 
                                     Receipts or Less
Hotels and Motels              $6 Million in Annual Receipts 
                                          or Less
Tower Owners                  (See Lessee's Type of Business)

      



































           STATEMENT OF COMMISSIONER MICHAEL J. COPPS,
            APPROVING IN PART, CONCURRING IN PART

Re:  Entercom Sacramento  License, LLC, Licensee  of Station 
     KRXQ(FM), Sacramento  CA, Notice of  Apparent Liability 
     for Forfeiture 

     I agree that these broadcasts are indecent in violation 
of the  statute.  Nonetheless,  I concur  in part  because I 
believe that the Commission could  have assessed a fine that 
goes beyond a  cost of doing business by  imposing a penalty 
for  multiple indecent  utterances  within at  least one  of 
these programs.   This case  further highlights the  need to 
address  indecency  complaints  more  expeditiously.   These 
broadcasts occurred almost two years ago.  








































            SEPARATE STATEMENT OF KEVIN J. MARTIN
            APPROVING IN PART, CONCURRING IN PART

Re:  Entercom Sacramento  License, LLC, Licensee  of Station 
KRXQ(FM), Sacramento  CA, Notice  of Apparent  Liability for 
Forfeiture (September 22, 2004)

     Consistent with my past statements, I believe we should 
be fining  broadcasters on a ``per  utterance'' basis.53  In 
this instance, we could have found several violations within 
the broadcasts 
at issue and therefore could have assessed a larger fine.

_________________________

1 47 U.S.C.  503(b); 47 C.F.R.  1.80.

2 See Letter to Charles W. Kelley, Chief, Investigations and 
Hearings  Division,  Enforcement Bureau,  from  Complainant, 
dated September 9, 2002; Letter to Charles W. Kelley, Chief, 
Investigations  and Hearings  Division, Enforcement  Bureau, 
from  Complainant,  dated  September  23,  2002;  Letter  to 
Charles  W.  Kelley,   Chief,  Investigations  and  Hearings 
Division,  Enforcement   Bureau,  from   Complainant,  dated 
October 5,  2002; Letter to Sandra  Watson, Program Analyst, 
Investigations  and Hearings  Division, Enforcement  Bureau, 
from  Complainant, dated  February 26,  2003; and  E-mail to 
Dana Leavitt,  Assistant Chief, Investigations  and Hearings 
Division, Enforcement Bureau,  from Complainant, dated March 
10, 2003. 

3  See  Letter to  Entercom  Sacramento  License, LLC,  from 
Maureen  F. Del  Duca,  Chief,  Investigations and  Hearings 
Division,  Enforcement Bureau,  dated  August  21, 2003.   A 
transcript  of  each of  the  program  segments is  appended 
hereto as Attachment A and B, respectively.  

4 Letter to Dana E. Leavitt, Assistant Chief, Investigations 
and  Hearings Division,  Enforcement Bureau,  from Brian  M. 
Madden, Esq.,  dated October  17, 2003  (``Response'').  See 
also  Letter to  David Solomon,  Chief, Enforcement  Bureau, 
from Brian M. Madden, Esq.,  dated October 17, 2003, wherein 
Entercom   requests   confidential  treatment   of   certain 
documents attached to its Response.  Because the instant NAL 
does not rely  on such attached materials, we  do not herein 
render   a   decision   on    the   merits   of   Entercom's 
confidentiality  request.   See  also   Letter  to  Dana  E. 
Leavitt, Esq., Assistant  Chief, Investigations and Hearings 
Division,  from Brian  M. Madden,  Esq., dated  November 18, 
2003.

5 Response at 3-4.

6 Id. at 4

7 Id. at 5.

8 Id. at 8-11.

9 Id. at note 8.

10 Id. at 12.

11 See 47 U.S.C.  326.

12 18 U.S.C.  1464. 

13 Public Telecommunications  Act of 1992, Pub.  L. No. 102-
356, 106 Stat. 949  (1992); Action for Children's Television 
v. FCC, 58 F.3d 654 (D.C.  Cir 1995), cert. denied, 516 U.S. 
1043 (1996) (``Act III'').

14 47 C.F.R.  73.3999.

15 Response at 3-4.

16  Infinity Broadcasting  Corp. of  Los Angeles  (KROQ-FM), 
Memorandum Opinion  and Order, 17  FCC Rcd 9892, 9896,   17 
(2002) (``a  licensee may  not avoid liability  `by claiming 
that he  doesn't know what  did or did  not go out  over his 
station.'").

17 Response at 6.

18 U.S.  Const., amend. I; Action  for Children's Television 
v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').

19  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.''  FCC  v. Pacifica  Foundation, 438 U.S. 726 
(1978).   See also  ACT  I,  852 F.2d  at  1339; Action  for 
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 
1991), cert. denied,  503 U.S. 914 (1992)  (``ACT II''); ACT 
III, 58 F.3d 654.

20 ACT I, 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 may say and hear.''); id., 
852 F.2d at 1340, n.14 (``the potential chilling effect of 
the FCC's general definition of indecency will be tempered 
by the Commission's restrained enforcement policy.''). 

21  Infinity   Broadcasting  Corporation   of  Pennsylvania, 
Memorandum  Opinion  and  Order,   2  FCC  Rcd  2705  (1987) 
(subsequent  history omitted)  (citing Pacifica  Foundation, 
Memorandum Opinion and Order, 56 FCC 2d 94, 98 (1975), aff'd 
sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).  

22   Industry  Guidance   on  the   Commission's  Case   Law 
Interpreting  18  U.S.C.   1464  and  Enforcement  Policies 
Regarding Broadcast Indecency, Policy  Statement, 16 FCC Rcd 
7999, 8002,   7-8 (2001) (``Indecency  Policy Statement'') 
(emphasis in original).

23 The  ``contemporary standards for the  broadcast medium'' 
criterion is that of an average broadcast listener and, with 
respect  to Commission  decisions,  does  not encompass  any 
particular   geographic   area.    See   WPBN/WTOM   License 
Subsidiary, Inc.,  Memorandum Opinion and Order,  15 FCC Rcd 
1838, 1841 (2000).  

24  Indecency Policy  Statement, 16  FCC  Rcd at  8002,   9 
(emphasis in original).  

25 Id., 16 FCC Rcd at 8002-15,  8-23.  

26 Id., 16 FCC Rcd at 8003,  10.

27 Id.,  16 FCC Rcd at  8009,  19 (citing  Tempe Radio, Inc 
(KUPD-FM), Notice  of Apparent  Liability, 12 FCC  Rcd 21828 
(Mass Media Bur. 1997) (forfeiture paid)) (extremely graphic 
or  explicit  nature  of  references to  sex  with  children 
outweighed the  fleeting nature  of the references);  EZ New 
Orleans, Inc.  (WEZB(FM)), Notice of Apparent  Liability, 12 
FCC  Rcd  4147  (Mass  Media Bur.  1997)  (forfeiture  paid) 
(same)). 

28 Id., 16  FCC Rcd at 8010,  20  (``the manner and purpose 
of   a  presentation   may   well   preclude  an   indecency 
determination   even   though   other   factors,   such   as 
explicitness,  might   weigh  in   favor  of   an  indecency 
finding'').

29 Citicasters Co.(KSJO(FM)),  Notice of Apparent Liability, 
15 FCC  Rcd 19091 (Enf.  Bur. 2000) (``joke''  that includes 
patently  offensive  references  to   incest  and  sex  with 
children); Tempe Radio, 12 FCC Rcd 21828 (patently offensive 
language referring to sexual activity  with a child); EZ New 
Orleans,  Inc.,   12  FCC   Rcd  4147   (patently  offensive 
references to incest and sexual activity with an infant).

30 Indecency Policy Statement, 16 FCC Rcd at 8009.

31 Attachment B, infra, at 12.

32 Attachment B, infra, at 14.

33 Attachment B, infra, at 15.

34 Attachment B, infra, at 18.

35 Attachment B, infra, at 19.

36  Response at  9, citing  Letter from  Charles W.  Kelley, 
Chief,  Investigations  and  Hearings Division,  to  Charles 
Giacona, dated April 22, 2002, EB-01-IH-0407/WK.

37 Response  at 11,  citing Letter  from Charles  W. Kelley, 
Chief,  Investigations  and   Hearings  Division,  to  Mindy 
Pierce, dated February 12, 2002, EB-01-IH-0331/GDJ.

38  Id. at  4-5.   Entercom also  cites various  unpublished 
materials in which the former Mass Media Bureau, predecessor 
to the  current Media Bureau  of the Commission,  found that 
certain material  was not actionably indecent.   Response at 
11.   Published  decisions,  including those  cited  in  the 
Commission's  Indecency Policy  Statement, provide  guidance 
indicating that material such as that contained in this case 
is indecent.  Thus, even to the extent Entercom was aware of 
these unpublished decisions, we  do not believe any reliance 
on them was reasonable.

39 47 C.F.R.  73.3999.

40 Response at 11-12.

41 See WPBN/WTOM, 15 FCC Rcd at 184.

42 Response at note 8.

43  See,  e.g.,  Infinity Broadcasting  Corporation  of  Los 
Angeles (KROQ-FM), Memorandum Opinion  and Order, 17 FCC Rcd 
9892  (2002); WQAM  License Limited  Partnership, Forfeiture 
Order,  15  FCC  Rcd   2518  (2000)(noting  that  the  Court 
indicated   that   broadcast  indecency   regulations   were 
justified  based  on  significant  differences  between  the 
Internet and  the broadcast medium and  between the standard 
in  the  statute at  issue  and  the Commission's  broadcast 
indecency standard).

44 Entercom cites language from Ashcroft v. Free Speech 
Coalition, 122 S.Ct. 1389 (2002), a case invalidating 
provisions of the Child Pornography Prevention Act of 1996 
(``CPPA''), which criminalized non-obscene ``virtual'' child 
pornography.  The CPPA extended the federal prohibition 
against child pornography to sexually explicit images that 
appeared to depict minors but were produced without using 
any real children.  In the text cited, the Court 
distinguished provisions of the CPPA related to ``virtual'' 
child pornography from constitutionally valid statutory 
provisions banning actual child pornography.  Protecting 
children from exposure to indecent material is a compelling 
governmental interest and courts have not questioned or 
expected proof on the issue of harm.  See Sable 
Communications, 492 U.S. at 126-27.  To withstand 
constitutional scrutiny, however, government regulations 
aimed at promoting this compelling interest must be narrowly 
drawn so as not to unnecessarily interfere with First 
Amendment freedoms.  The U.S. Court of Appeals for the D.C. 
Circuit has concluded that a 10 p.m. to 6 a.m. ``safe 
harbor'' period, during which indecent speech may be legally 
broadcast, is justified as a properly tailored means of 
vindicating the government's compelling interest in the 
welfare of children.  See ACT III, 58 F.3d at 667.  See also 
FCC v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978).  

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

46   The  Commission's   Forfeiture  Policy   Statement  and 
Amendment of  Section 1.80 of  the Rules to  Incorporate the 
Forfeiture Guidelines, Memorandum Opinion  and Order, 12 FCC 
Rcd 17087, 17113 (1997), recon. denied 15 FCC Rcd 303 (1999) 
(``Forfeiture Policy Statement''); 47 C.F.R.  1.80(b).

47 Forfeiture Policy Statement, 12 FCC Rcd at 17110.

48  On  September  27,   2002,  the  Commission  released  a 
Forfeiture Order  in the amount of  $12,000 against Entercom 
Seattle License, LLC, licensee of Station KNDD(FM), Seattle, 
Washington, for  broadcasting indecent material,  in willful 
and repeated violation  of 18 U.S.C.  1464 and  47 C.F.R.  
73.3999.   See  Entercom  Seattle  License,  LLC,  Order  of 
Forfeiture, 17  FCC Rcd 18347 (Enf.  Bur. 2002) (application 
for review pending).  Entercom and Entercom Seattle License, 
LLC,   are  both   wholly-owned  subsidiaries   of  Entercom 
Communications Corp.

49 Id.; 47 C.F.R.   1.80.  The Commission amended its rules 
to increase  the maximum penalties to  account for inflation 
since the last adjustment of the penalty rates.  The revised 
amounts  apply to  violations that  occur or  continue after 
November 13, 2000.  See Amendment  of Section 1.80(b) of the 
Commission's Rules  and Adjustment  of Forfeiture  Maxima to 
Reflect Inflation, Order, 15 FCC Rcd 18221 (2000).

50  See 47 U.S.C.   312(a).   On April  3, 2003,  we placed 
broadcast licensees  on clear notice that  we would consider 
commencing license revocation proceedings in egregious cases 
involving the broadcast of  indecent material.  See Infinity 
Broadcasting Operations, Inc., Notice of Apparent Liability, 
18 FCC Rcd 6915 (2003).  But  for the fact that the material 
here was  broadcast prior to  April 3, 2003,  Entercom might 
well be facing an  adjudicatory hearing to determine whether 
its license  for Station KRXQ(FM) should  be revoked, rather 
than the instant proposed forfeiture.

51 47 C.F.R.  1.80.  

52 See 47 C.F.R.  1.1914.

     53  See,  e.g.,  Separate  Statement  of  Commissioner 
Martin, Infinity Broadcasting Operations, Inc., Licensee of 
Station  WKRK-FM,  Detroit,  Michigan, Notice  of  Apparent 
Liability,  18  FCC  Rcd.  6915, 6939  (2003)  (urging  the 
Commission to fine violators ``per utterance'').