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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
CAPSTAR TX LIMITED PARTNERSHIP ) File No. EB-02-IH-0564-
Licensee of ) NAL/Acct. No. 200432080012
Station WAVW(FM) ) FRN No. 0003474947
(Formerly WZZR(FM)) ) Facility ID No. 14376
Stuart, Florida )
Station WCZR(FM) )
Vero Beach, Florida ) Facility ID No. 41066
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 20, 2004 Released: March
By the Commission: Commissioners Martin and Adelstein
issuing separate statements; Commissioner Copps dissenting
and issuing a statement.
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 grant a
complaint,2 and find that Capstar TX Limited Partnership
(``Capstar''), licensee of Stations WAVW(FM),3 Stuart,
Florida, and WCZR(FM) Vero Beach, Florida, apparently
violated 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, by
willfully and repeatedly airing indecent material over the
stations on May 31, 2002. Based upon our review of the
facts and circumstances in this case, we conclude that
Capstar is apparently liable for a monetary forfeiture in
the amount of Fifty-Five Thousand Dollars ($55,000.00).
2. The Commission received a complaint alleging that
Station WZZR(FM) aired indecent material at 7:15 a.m. on May
31, 2002.4 The complainant included a detailed description
of broadcast material that the complainant believed depicted
an actual or apparent sex act between a man and woman.5
Because the complaint contained potentially indecent
material that aired between 6 a.m. and 10 p.m., Enforcement
Bureau (``Bureau'') staff issued a letter of inquiry to the
licensee.6 In its response to the staff's inquiry, Clear
Channel Communications, Inc. (``Clear Channel''), the
indirect parent of Capstar, states that it has neither a
tape nor a transcript and cannot determine whether the
alleged material actually aired.7 Nevertheless, Clear
Channel does not deny that the material aired as stated in
the complaint, and maintains instead that, even if it aired
the material in question, it was not actionably indecent.8
Specifically, Clear Channel states that the material
consisted mainly of sounds of a woman moaning which was not
patently offensive because the context of the sounds was
unclear and because ``any direct references to sex were
isolated and brief'' and not ``lengthy, repetitive or
explicit.''9 On August 19, 2003, the staff sent a
supplemental letter of inquiry to Clear Channel, to which
Clear Channel responded on September 3, 2003, indicating
that the broadcast material at issue was also simulcast on
Station WCZR(FM), Vero Beach, Florida, on the date and at
the time alleged in the complaint.10
3. 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, section 73.3999 of the Commission's rules provides
that radio and television stations shall not broadcast
obscene material at any time, and, consistent with a
subsequent statute and court decision,13 shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.14
4. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.15 In order to impose such a forfeiture penalty,
the Commission must issue a notice of apparent liability,
the notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.16
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated
the Act or a Commission rule.17 As we set forth in greater
detail below, we conclude under this standard that Capstar
is apparently liable for a forfeiture for its apparent
willful and repeated violations of 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules.
A. Indecency Analysis
5. 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
6. 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
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
definition¾that 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
7. As an initial matter, Clear Channel does not
dispute that it aired material describing or depicting
sexual and excretory activities and organs.23 That
material, therefore, warrants further scrutiny to determine
whether or not it was patently offensive as measured by
contemporary community standards for the broadcast medium.24
8. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''25 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.26 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.''27 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,28 or, alternatively, removing the
broadcast material from the realm of indecency.29 We turn
now to our analysis of the three principal factors in our
9. First, the comments and dialogue carried on by the
program hosts during the broadcasts contained graphic and
explicit references to sexual activities, including repeated
discussion and depiction of oral sex. The May 31 broadcast
contains a dialogue between the hosts and a man and woman,
purportedly husband and wife, just prior to, during and
after an act of actual or simulated sexual intercourse.30
Specifically, the complainant states that she heard sounds
like ``someone was eating'' which are referenced later in
the conversation as the woman having had ``a mouthful''
prior to the beginning of the actual or simulated sex act,
both comprising clear references to oral sex.31 In
addition to these references and consistent with that tone,
the broadcast features the sounds of a woman moaning which
figure prominently throughout the segment.32 There are
other graphic references to oral sex, for example:
Then the DJ said to [the female
participant] `I think you like giving
oral as much as you like being on the
receiving end, right?' She said
`yes.' . . . She asked if she could
bring some pictures of herself down to
the station. The DJ said `yes and
when you come down you can give me
some oral' to which she replied `yes'
and the DJ said `I'll bet your husband
is saying no right now.'33
To the extent that the sound effects or colloquial terms
that the program hosts used to describe sexual activities
could be described as innuendo rather than as direct
references, they are nonetheless sufficient to render the
material actionably indecent because the sexual import of
those sounds and terms was ``unmistakable.''34 Given the
explicit references and the graphic manner in which the
broadcasts described the activities of the subjects engaging
in the purported sex acts, there is no non-sexual meaning
that a listener could possibly have attributed to these
terms.35 Therefore, we find that the broadcast at issue
described sexual activities through the use of direct
references, simulation, and/or innuendo that were
sufficiently explicit or graphic to be deemed patently
offensive as measured by contemporary community standards
for the broadcast medium.
10. Second, the program hosts, in their dialogue with
each other and the callers, continuously focused on the
sexual activities of the two subjects in graphic detail.
The sexual discussion and references were not fleeting or
isolated. Rather, discussions about and references to
sexual activity pervaded, and were the subject of the May
31, 2002, broadcast. Thus, the sexual discussions and
references were dwelled upon and repeated and constitute
patently offensive material as measured by contemporary
standards for the broadcast medium.
11. Finally, and perhaps most significantly, several
characteristics of the manner in which the station presented
this material establish that Capstar broadcast this material
to pander to, titillate and shock listeners. The program
hosts' continued and repeated references to the couple's
sexual activities and comments about their specific sexual
practices clearly evince the pandering nature and shock
value of the material with regard to the listening audience.
For example, one of the hosts asked the woman if she and her
husband were both naked and whether ``they were ready.''36
The hosts also asked the woman if she had ``climaxed'' and
whether she and her husband were ``planning on having sex
again.''37 The hosts conclude the program by stating ``we
have been listening to Zoe and her husband having sex.''38
During the broadcast, the program hosts geared their
questions to the subjects to elicit specific information
from them regarding their sexual practices, focusing on the
topic of oral sex in particular.39 By goading the couple
into discussing their sexual activities in a pandering and
offensive manner, the program hosts set out to pander and to
shock listeners. In this regard, the program hosts'
broadcast of eating sounds when referring to oral sex and
loud moaning sounds during other sexual activities
demonstrates that, in context, this program was not a
clinical discussion of a married couple's sexual behavior.
Further, the broadcast occurred at or about 7 a.m., when
there was a reasonable risk that children, whom the
government has a recognized and compelling interest to
shield from indecent material,40 would be in the audience,
on their way to or getting ready for school. For these
reasons, we find that the May 31, 2002, broadcast was
patently offensive as measured by contemporary community
standards for the broadcast medium.
12. We disagree with Clear Channel's contention that
the language used was not patently offensive or actionably
indecent because the context in which the language appears
is not readily apparent.41 The material includes
unmistakable references to sexual activity, including sexual
intercourse and oral sex. In a similar situation, we found
the broadcast of graphic descriptions of sexual and
excretory activities between couples to be indecent.42
Likewise, the staff determined that the interview of an
adult-film actress who crudely relayed her fondness for oral
sex was indecent.43 We believe a similar result is
13. In sum, by broadcasting this material on May 31,
2002, within the 6 a.m. to 10 p.m. time period relevant to
an indecency determination under section 73.3999 of the
Commission's rules, Capstar apparently violated 18 U.S.C. §
1464 and the Commission's rule against broadcast indecency.
B. Proposed Forfeiture
14. Based upon our review of the record in this case,
we conclude that Capstar is apparently liable for a
forfeiture for two willful and repeated violations of our
rules for broadcasting indecent material over two stations.
The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $7,000.00 for transmission of indecent
materials.45 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.''46 In this
case, taking all of these factors into consideration, we
find that Capstar is apparently liable for a forfeiture
reflecting the proposed imposition of the statutory maximum
of $27,500 for each broadcast of apparently indecent
material over two stations, WZZR(FM) and WCZR(FM) (2 x
$27,500.00). Based upon our review of the entire record, we
believe that this upward adjustment to the statutory maximum
is warranted. There is a recent history of indecent
broadcasts on stations controlled by Clear Channel,
Capstar's corporate parent, which justifies imposition of
the maximum forfeiture amount.47 We reiterate our recent
statement that multiple serious violations of our indecency
rule by broadcasters may well lead to license revocation
proceedings.48 We also remind broadcasters that separate
utterances within a single broadcast may be considered
separate violations for purposes of determining forfeitures
under our indecency rules.49
IV. ORDERING CLAUSES
15. ACCORDINGLY, 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,50 that Capstar TX
Limited Partnership is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of Fifty-Five
Thousand Dollars ($55,000.00) for willfully and repeatedly
violating 18 U.S.C. § 1464 and section 73.3999 of the
16. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty (30) days of
the release of this Notice, Capstar TX Limited Partnership
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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 Numbers
(``FRN'') referenced above and also should note the
NAL/Account Number referenced above.
18. 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 Capstar TX
Limited Partnership qualifies as a small entity and if it
wishes to be treated as a small entity for tracking
purposes, it should so certify to us within thirty (30) days
of this NAL, either in its response to the NAL or in a
separate filing to be sent to the Investigations and
Hearings Division. The certification should indicate
whether Capstar TX Limited Partnership, including its 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 A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Clear
Channel's response or failure to respond to this question
will have no effect on its rights and responsibilities
pursuant to Section 503(b) of the Communications Act. If
Clear Channel has questions regarding any of the information
contained in Attachment B, it should contact OCBO at (202)
19. The response, if any, must be mailed to William
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington D.C. 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. 20554.52
22. Accordingly, IT IS ORDERED, that the complaint
filed against Station WAVW(FM)'s broadcast of May 31, 2002,
IS GRANTED, and the complaint proceeding IS HEREBY
23. IT IS FURTHER ORDERED, that a copy of this Notice
of Apparent Liability For Forfeiture shall be sent by
Certified Mail, Return Receipt Requested, to Richard W.
Wolf, Vice President, Clear Channel Communications Inc.,
2625 S. Memorial Drive, Suite A, Tulsa, Oklahoma 74129; and
to counsel for Clear Channel and Capstar, Eve J. Klindera,
Esquire, Wiley Rein and Fielding, LLP, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
FCC List of Small Entities
As described below, a ``small entity'' may be a small
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
(3) Small Business
Any business concern that is independently owned and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
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
1,500 Employees or Fewer
Local Exchange Carriers,
Carriers, Operator Service
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.
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Satellite Earth Stations
Geostationary Space Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
$12 Million in Annual Receipts
Low Power Television
Services and Television
TV Auxiliary, Special
Broadcast and Other Program
$6 Million in Annual Receipts
Radio Auxiliary, Special
Broadcast and Other Program
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
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
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
700 MHZ Guard Band Licensees
Private and Common Carrier
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
Rural Radiotelephone Service 1,500 Employees or Fewer
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
900 MHz Specialized Mobile
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
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Capstar TX Limited Partnership, licensee of
Stations WAVW(FM)(formerly WZZR(FM)), Stuart, Florida,
and WCZR(FM), Vero Beach, Florida, Notice of Apparent
Liability for Forfeiture
In this case, two Clear Channel radio stations aired
what was purportedly a couple engaging in sex and then
discussed sexual activities with them. Clear Channel has
been the subject of repeated indecency actions at the FCC,
accounting for well over half the indecency fines since
2000. Yet, notwithstanding the repeated nature of Clear
Channel's transgressions, the majority proposes a mere
$27,500 fine for each incident -- a ``cost of doing
business'' to a media giant like Clear Channel.
For repeat offenders as in this case, I believe the
Commission should have designated these cases for license
revocation hearings. As I recognized in a prior case, Clear
Channel has taken some steps in recent days to address
indecency on its stations. A hearing would have provided
the Commission with the ability to consider what actions the
stations took in response to these broadcasts and to decide
on the appropriate penalty.
I am discouraged that my colleagues would not join me
in taking a firm stand here against indecency on the
airwaves. The time has come for the Commission to send a
strong message that it is serious about enforcing the
indecency laws of our country.
Although I do not support this decision, I am pleased
that the Commission is proceeding in this case without a
tape or transcript. The complainant provided us with a
description of what was heard on the radio. The Commission
has decided that this description was sufficient for us to
find that the licensee broadcast indecency. I hope the
Commission will expressly and publicly overturn its general
policy that a complainant must provide a tape, transcript,
or significant excerpt of the programming at issue to
support an indecency complaint. I have long expressed the
view that this practice places an inordinate responsibility
on the complaining citizen and that it is the Commission's
responsibility to investigate complaints that the law has
been violated, not the citizen's responsibility to prove the
violations. STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Capstar TX Limited Partnership, Licensee of Station
WAVW(FM), Stuart FL, and Station WCZR(FM), Vero Beach,
FL, Notice of Apparent Liability For Forfeiture
I support this Notice finding that the two licensees at
issue apparently violated our indecency rule. I write
separately to emphasize that the complainant had no tape or
transcript, but did provide us with a description of what
she heard on the radio. I am pleased that the Commission
has unanimously decided that this description was sufficient
for us to find that the licensee broadcast indecency.
Complaints should no longer be denied because of a lack of
tape, transcript, or significant excerpt.
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Capstar TX Limited Partnership, Licensee of
Station WAVW(FM)(formerly WZZR(FM)), Stuart, Florida,
and Station WCZR(FM), Vero Beach, Florida; Notice of
Apparent Liability for Forfeiture
I support this Notice of Apparent Liability for the
broadcast of indecent material at a time when children may
be in the audience. By issuing this NAL, we step up to our
responsibility to enforce statutory and regulatory
provisions restricting broadcast indecency. Once again, we
impose statutory maximum fines and remind broadcasters that
the Commission can and will avail itself of a range of
enforcement sanctions. While I am pleased that today we
affirmatively find that a tape or transcript is not
necessary, I also remind complainants to provide a
sufficient description on which we can understand the full
context in which the material was broadcast. And I urge
broadcasters to assist the Commission fully with its
Since I arrived at the Commission, we have greatly
stepped up our enforcement against indecent broadcasts. I
expect that these stepped-up actions will convince
broadcasters that they cannot ignore their responsibility to
serve the public interest and to avoid the broadcast of
indecent material over the public airwaves.
1 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).
2 See Letter dated June 1, 2002, to Federal Communications
Commission (``Complaint Letter'').
3 On January 1, 2003, WZZR(FM) changed its call sign to
4 See Complaint Letter.
6 See Letter dated July 22, 2002, from Charles W. Kelley,
Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, to Capstar.
7 See Letter dated August 21, 2002, from Kenneth E. Wyker,
Senior Vice President and General Counsel for Clear Channel,
to Marlene H. Dortch, Secretary, Federal Communications
Commission (``Clear Channel Response to Inquiry I'').
8 See id.
9 Id. at 2-4.
10 See Letter dated September 3, 2003, from Richard W. Wolf,
Vice President for Clear Channel, to Marlene H. Dortch,
Secretary, Federal Communications Commission (``Clear
Channel Response to Inquiry II'').
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) (setting the current safe harbor
of 10 p.m. to 6 a.m. for the broadcast of indecent
material); see also Action for Children's Television v. FCC,
58 F. 3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516
U.S. 1072 (1996) (``ACT III'') (affirming restrictions
prohibiting the transmission of indecent material between
the hours of 6 a.m. and 10 p.m.).
14 See 47 C.F.R. § 73.3999.
15 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see
also 47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of
14 U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely repeated,
and not willful. See, e.g., Callais Cablevision, Inc.,
Grand Isle, Louisiana, Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' merely means that the act was committed or
omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
16 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
17 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
(2002) (forfeiture paid).
18 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
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 at 657.
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.''). See
id. at 1340 n.14 (`` . . . the potential chilling effect of
the FCC's generic definition of indecency will be tempered
by the Commission's restrained enforcement policy.'').
21 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)).
22 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶¶ 7-8
(emphasis in original).
23 See Clear Channel Response to Inquiry I at 1.
24 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 Indecency Policy Statement
16 FCC Rcd at 8002, ¶ 8 and n. 15.
25 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9
(emphasis in original).
26 Id. at 8002-15, ¶¶ 8-23.
27 Id. at 8003, ¶ 10.
28 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM), 12
FCC Rcd 21828 (MMB 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)), 12 FCC Rcd 4147 (MMB 1997)
(forfeiture paid) (same).
29 Id. 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'').
30 See Complaint Letter.
34 See Indecency Policy Statement, 16 FCC Rcd at 8003-04, ¶
12; see also Telemundo of Puerto Rico License Corp. (WKAQ-
TV), 16 FCC Rcd 7157 (EB 2001) (forfeiture paid); Citcasters
Co. (KEGL(FM), 15 FCC Rcd 19091 (EB 2000) (forfeiture paid).
35 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873,
6874 (1972) (subsequent history omitted).
36 See Complaint Letter.
39 See id.
40 See ACT III, 58 F.3d at 660-63.
41 See Clear Channel Response to Inquiry I at 3. Clear
Channel also alleges that, because the sexual context is not
apparent, the sound of a woman moaning, by itself, does not
meet the Commission's indecency standard. Id.
42 See Rusk Corporation (KLOL(FM)), Notice of Apparent
Liability for Forfeiture, 5 FCC Rcd 6332 (MMB 1990) (``Rusk
Corporation'') (graphic descriptions that ``focused on
sexual and excretory activities in a lewd, vulgar, pandering
and titillating manner'' broadcast between 6:00 a.m. and 10
p.m. constituted violation of the Commission's restrictions
on the broadcast of indecent materials).
43 See Regent Licensee of Flagstaff, Inc. (KZGL (FM)),
Notice of Apparent Liability for Forfeiture, 15 FCC Rcd
17286 (EB 2000). See also Rusk Corporation, 5 FCC Rcd 6332.
44 See Rusk Corporation, 5 FCC Rcd at 6332.
45 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy
Statement''); 47 C.F.R. § 1.80(b).
46 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶
47 AMFM Radio Licenses, LLC (WWDC(FM)), FCC 03-233 (Oct. 2,
2003) (forfeiture paid); Citicasters Co. (KEGL(FM)), 16 FCC
Rcd 7546 (EB 2001) (forfeiture paid); Citicasters Co.
(WXTB(FM)), 15 RCC Rcd 25,453 (2000) (forfeiture paid);
Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19,095 (EB 2000)
(forfeiture paid); Citicasters Co. (KSJO(FM)), 15 FCC Rcd
19091 (EB 2000) (forfeiture paid); Citicasters Co.
(WXTB(FM)), 15 FCC Rcd 11,906 (2000) (forfeiture paid).
48 See Infinity Broadcasting NAL(WKRK-FM), 18 FCC Rcd 6915,
6919, ¶ 13 (2003); Forfeiture Order, FCC 03-302, rel. Dec.
8, 2003; see also AMFM FM Radio Licenses LLC (WWDC(FM)),
2003 WL 22251146 (2003) (forfeiture paid) (``Infinity
Broadcasting NAL''). We note that the misconduct at issue
here before us occurred prior to our warning regarding
possible revocation proceedings.
49 See Infinity Broadcasting NAL, 18 FCC Rcd at 6919, ¶ 13.
50 47 C.F.R. § 1.80.
51 The amount is allocated on a basis of $27,500.00 per
52 See 47 C.F.R. § 1.1914.
53 Consistent with section 503(b) of the Act and with
Commission practice, for the purposes of the forfeiture
proceeding initiated by this NAL, Capstar shall be the only
party to this proceeding.