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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ENTERCOM SEATTLE LICENSE, LLC ) File No. EB-01-IH-0395
) NAL/Acct. No. 200232080005
Licensee of Station KNDD(FM), ) FRN 0003245719
Seattle, Washington ) Facility ID # 34530
MEMORANDUM OPINION AND ORDER
Adopted: April 8, 2004 Released: May 14,
By the Commission: Commissioner Martin issuing a statement;
Commissioner Copps dissenting and
issuing a statement.
1. In this Memorandum Opinion and Order, we deny the
Application for Review, filed on October 28, 2002, by
Entercom Seattle License, LLC (``Entercom''), licensee of
Station KNDD(FM), Seattle, Washington. Entercom seeks
review, pursuant to 47 C.F.R. § 1.115, of a Forfeiture Order
issued by the Chief, Enforcement Bureau (``Bureau'') that
imposed a monetary forfeiture penalty in the amount of
Twelve Thousand Dollars ($12,000.00) against Entercom for
willful and repeated violations of 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, which prohibit the broadcast of indecent
material between 6 a.m. and 10 p.m.
2. The Commission received a complaint that KNDD(FM)
broadcast indecent material on May 30 and 31, and June 1,
2001. The complainant alleged that, during the May 30 and
June 1 broadcasts, the station broadcast material concerning
whether and how a penis could be used to lift or pull
objects. After reviewing the complaint, we issued a letter
of inquiry to Entercom.1 Entercom submitted a response,2
which included a transcript of the material at issue in the
complaint, which Entercom had prepared.3 As set forth in
the transcript, during the May 30, 2001, broadcast, the
station's morning show personalities discussed whether a
penis could be used to lift or pull objects.4 As a result
of the on-air discussion, the show's hosts decided to give
concert tickets to listeners who agreed to appear in the
studio to pull objects with their penises.5 During the June
1, 2001, broadcast, the show's hosts discussed the
preparations for the contest, during which an individual in
the studio attempted to put a harness on his penis.6
3. After reviewing Entercom's response to the letter
of inquiry, the Bureau issued a Notice of Apparent Liability
(``NAL''), finding that the complained-of material that was
broadcast on May 30 and on June 1, 2001, was patently
offensive and therefore apparently violated the Commission's
indecency rule.7 The NAL proposed a monetary forfeiture
penalty of Fourteen Thousand Dollars ($14,000.00) based upon
KNDD(FM)'s broadcast of apparently indecent material on two
4. On February 27, 2002, Entercom filed a response to
the Bureau's NAL8 in accordance with Section 1.80(f)(3) of
the Commission's rules.9 Entercom contended that there is a
clear absence of any sexual or excretory context or import
in the complained-of material because there is no discussion
about the sexual or excretory functions of the male
genitalia.10 Thus, Entercom argued that the material was
not patently offensive as measured by contemporary community
standards for the broadcast medium, and was not actionably
indecent.11 Entercom also cited the United States Supreme
Court's decision in Reno v. ACLU, 521 U.S. 844 (1997), which
invalidated an indecency standard for the Internet, in
support of its argument that the Commission's indecency
standard is vague, overbroad, unenforceable, and, therefore,
unconstitutional.12 Moreover, Entercom argued that if the
proposed forfeiture was not canceled, it was entitled to a
downward adjustment based on its history of overall
compliance with the Commission's rules.13
5. The Bureau considered the Entercom NAL response,
and issued the Forfeiture Order.14 The Bureau rejected
Entercom's argument that the NAL's finding that the
complained-of material apparently met the Commission's
indecency definition was a ``radical and unexplained
departure from past FCC case precedent, where an
unmistakable sexual or excretory import has been an
indispensable element of an indecency finding.''15 In doing
so, the Bureau specifically ruled that the indecency
definition encompasses references to sexual organs, separate
and apart from sexual activities, where those references are
patently offensive. Although the Bureau disagreed with
Entercom's assertion that the broadcast of indecent material
on two separate occasions constituted a minor violation, it
nevertheless found that a downward adjustment of the
forfeiture amount was appropriate in light of Entercom's
overall history of compliance and imposed a Twelve Thousand
Dollar ($12,000.00) forfeiture.
6. In its Application for Review, Entercom continues
to assert its argument that the Bureau's decision amounts to
a new indecency definition, under which non-sexual
references to male genitalia during a broadcast are per se
indecent, and that such use, by itself, is sufficiently
explicit and graphic to justify an indecency finding, even
in the absence of any sexual or excretory import.16
Entercom also contends that the Bureau's finding that the
complained-of material was patently offensive is conclusory
and unsupported by the precedent cited.17 In addition,
Entercom argues that the Commission's indecency definition
7. We have reviewed Entercom's Application for Review
and the record in this matter, and find no reason to reverse
the Bureau's Forfeiture Order. We agree with the Bureau
that the material cited in the Forfeiture Order met the
indecency standard. Consequently, we deny the Application
for Review and affirm the forfeiture assessed by the Bureau.
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
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
This definition has been specifically upheld by the federal
courts.20 The Commission's authority to restrict the
broadcast of indecent material extends to times when there
is a reasonable risk that children may be in the audience.21
Under current law, indecent material may not be broadcast
between 6 a.m. and 10 p.m.22
9. In the Entercom NAL Response, Entercom
acknowledged that the material broadcast on May 30 and June
1, 2001, contained references to sexual organs and did not
dispute that the material warranted scrutiny.23 However,
Entercom now challenges the Bureau's threshold determination
that it aired material describing or depicting sexual organs
and activities. Specifically, it contends that non-sexual
``references'' to the male genitalia do not meet the
threshold subject matter definition under the indecency
standard. Entercom therefore contends that, because the
complained-of material does not depict or describe sexual or
excretory organs or activities, the Bureau's conclusion that
this material warranted scrutiny constituted an
impermissible departure from precedent that requires
indecent material to have an unmistakable sexual or
10. We disagree, and find no error in the Bureau's
determination that the material at issue warranted scrutiny.
Our indecency definition requires an initial determination
as to whether the material at issue, in context, depicts or
describes sexual organs or activities. Contrary to
Entercom's assertion that the material is ``non-sexual,''
there is discussion of erection and arousal, which
implicates the sexual functions of the male genitalia.25 In
any event, material that, in context, depicts or describes
sexual organs is subject to the indecency definition,
regardless of whether sexual activity is also depicted or
described. In this regard, the Forfeiture Order states that
the complained-of material ``referred to sexual organs,''26
and also makes clear that ``... the Commission's indecency
definition is applicable to material that describes or
depicts sexual organs, which was the subject of these
broadcasts.''27 The Bureau cited, and the record includes,
descriptions of the male genitalia sufficient to warrant
further scrutiny to determine whether or not this material
was patently offensive as measured by contemporary community
standards for the broadcast medium.28
11. In the assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''29 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.30 In examining these three factors, it
is necessary to 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.''31 In particular
cases, one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive
and consequently indecent,32 or, alternatively, removing the
broadcast material from the realm of indecency.33 In this
case, we agree with the Bureau's examination of all three
factors and its determination that each weighs in favor of a
finding that the broadcast material was patently offensive.
Consequently, we reject Entercom's assertion that the
Forfeiture Order establishes that mere ``references'' to
male genitalia are per se indecent.34
12. First, we find no merit to Entercom's contention
that the Bureau failed to provide a meaningful analysis of
its finding that the material at issue is sufficiently
graphic and explicit. The Bureau cited the broadcasts'
discussion as to the capacity of the male genitalia to pull
objects, as well as references to erection, to relative
penis size and to the anatomical features of the male
genitalia.35 Entercom also argues that the Bureau failed to
address an unpublished staff letter, which ruled that
certain material broadcast over Station WMCA(AM), New York,
New York, was not indecent.36 We note that the WMCA decision
was an unappealed staff decision. The Commission is not
bound by, nor does it necessarily agree with, Bureau
13. The Bureau determined, under the second factor,
that the discussion of the male genitalia was not fleeting
or isolated. We emphasize, however, that ``[t]he mere fact
that specific words or phrases are not sustained or repeated
does not mandate a finding that material that is otherwise
patently offensive to the broadcast medium is not
indecent.''38 Although Entercom argues that the complained-
of material includes ``numerous traffic reports, celebrity
new items, concert updates and other news related
breaks[...that] ultimately diluted the segments' overall
focus on the pulling capacity of the penis,''39 the fact
that the broadcasts repeatedly returned to the topic
demonstrates a persistent focus on the male sexual organ and
removes any doubt that this material was patently offensive.
14. Under the third factor, Entercom also argues that,
because the material at issue contains ``no discussion at
all to the sexual or excretory functions of the penis or
testicles,'' it was not used to pander, titillate or
shock.40 Entercom claims that precedent cited by the
Bureau in the Forfeiture Order can be distinguished because
the material found to be indecent included discussion of
sexual activities, whereas the material broadcast over
KNDD(FM) does not.41 However, as noted above, the material
that was broadcast over KNDD(FM) included discussion of the
sexual function of the male genitalia.42 Moreover, material
that describes or depicts sexual organs, in context, may be
patently offensive within the meaning of the Commission's
indecency definition regardless of whether that material
also includes description or depiction of sexual activity.43
15. In addition, Entercom argues that the Bureau
impermissibly drew a distinction between the material
broadcast over KNDD(FM) and material which is of greater
``serious'' merit.44 However, the Bureau's Forfeiture Order
pointed to other material that was clinical in nature or
part of a legitimate news story in order to distinguish the
material broadcast over KNDD(FM) from other material that,
in context, was not patently offensive because the manner
and purpose of the presentation was not pandering or used to
titillate or shock.45 We agree with the Bureau's conclusion
that the complained-of material, in context, is similar to
other material that has been found to be patently offensive
and thus find no error in the Bureau's application of the
factors used to determine patent offensiveness.46
16. Entercom also argues that the Commission's
indecency standard is facially unconstitutional, citing Reno
v. ACLU 47 and Ashcroft v. Free Speech Coalition.48 The
constitutional validity of the Commission's indecency
standard has been repeatedly affirmed by courts.49 As we
have previously indicated, neither Reno nor Ashcroft alters
IV. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED, pursuant to section
1.115 (g) of the Commission's rules,51 that the Application
for Review filed on October 28, 2002 by Entercom Seattle
License, LLC is hereby DENIED.
18. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
``Federal Communications Commission'' to the Federal
Communications Commission, to the Forfeiture Collection
Section, Finance Branch, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment MUST INCLUDE the FCC Registration
Number (FRN)(0003245719) referenced above and also must note
the NAL/Acct. No. (200232080005) referenced above. If the
forfeiture is not paid within 30 days of the release of this
Memorandum Opinion and Order, the case may be referred to
the Department of Justice for collection
19. 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
20. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to John C. Donlevie, Executive Vice-President, Entercom
Seattle License, LLC, 401 City Avenue, Suite 409, Bala
Cynwyd, Pennsylvania, 19004 and to Entercom's counsel, Brian
M. Madden, Esq., Leventhal, Senter & Lerman P.L.L.C., 2000 K
Street, N.W., Suite 600, Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Radio Station: KNDD(FM), Seattle Washington
Dates/Time of Broadcasts: May 30, 2001 and June 1, 2001,
between 6 a.m. and 10 p.m.
Material Broadcast: The Andy Savage Show
May 30, 2001
AS: Andy Savage
B: Bob, the Producer
AS: That was the Red Hot Chili Peppers, 107.7, The End.
It's 7:16, I'm Andy Savage, along with Jody, Queen of
Normandy and Bob the Producer, who's filling in for
Steve the Producer.
B: Woop, Woop.
AS: 50 going to 70 for the high today. It's going to be
J: Was that your wacky producer noise right there? Woop,
woop, woop, woop, woop!
AS: Bob, I don't think you should be saying anything 'cuz
you lost on "Beat the Producer.
B: Alright, I'm Sorry, I'll be quiet.
AS: Meanwhile in India when they protest against the
federal government, you know they don't blow things up
or anything, they pull Jeeps with their penises. A uh,
Naga Sathu naked holy man was demonstrating again the
government harassment of naked holy men and to make
sure that they heard him he tied a rope around his
penis and pulled a Jeep.
J: He should have just used a megaphone like everyone
else. What the Indian government has a big problem with
naked holy men? Are they're running around crazy like?
AS: I guess so, I guess it's against the law. But he, I
guess, pulled a Jeep to prove his point. I'm sure it
was in neutral. I hope it was in neutral.
J: I can imagine it was in neutral. I'm sure it was one of
those like Suzuki Samurais too, not a big Hummer.
AS: Holy crap Nadi, he just pulled a Jeep and it was in
park - he did it with his penis!
J: You always hear about guys lifting stuff and pulling
stuff with things attached to their penises. I think
that is incredible. Could you pull something with your
J: Like if I was to tie, let's say um, what if it was
something small like.
AS: I'd pull my penis right off!
J: If it was something small like
AS: Like an acorn, yeah I can drag that around.
J: Like my orange. Let's say I tied a rope around my
orange and then tied the other end to your penis, and
you could pull that?
AS: Of course I could drag that.
J: How about a 13 inch TV? Like at what point do you
AS: If I think, I think if I was fully erect I could pull a
13 inch TV.
J: So you would have to be erect?
AS: Not for an orange though.
J: Bob, could you pull a 13 inch TV?
B: No. I'm not going heavier than ten pounds. I'm not.
That's about my cutoff, about ten pounds- erect, no
erect. Ten pounds.
J: Well what do you think the problem would be, that you'd
pull your back out or you'd actually pull your penis
AS: No, I don't think you'd pull your penis off with a TV
J: Cause if these guys can drag stuff, why can't you?
AS: We're talking about a Jeep. Why, I don't know I've
never tried nor do I care to try
J: I want to see somebody pull something with their penis
right in front of me live, here in the studio.
B: You could do a lot of damage.
B: You could tear some tissue. You don't even want to joke
AS: Yeah. It's in there in some sort of socket I'm sure.
What if it just pops right out. That would suck.
J: Well it's like saying, you know, what if we're arm
wrestling and my arm pops out of the socket.
AS: That's true.
J: Things are attached with muscles and tendons. Your
penis is attached with muscles and tendons.
AS: No it's a tissue that fills with blood, that's all,
J: Well it's attached.
AS: Well yeah, it's just skin though. It's not like it's an
J: Well if Naboo whatever can pull a Jeep with his
AS: Naga Sathu.
J: Do you think that he has some super penis?
J: And yours is not so super?
B: He's been practicing for a long ass time. He didn't
first start with a Jeep.
J: What about those guys that ?
AS: Mr. Lifto from the Jim Rose Circus.
J: He lifts stuff.
AS: He lifts stuff with his penis and he lifts like
concrete blocks doesn't he?
B: But he started small.
J: So you gotta start small and practice and build up.
AS: I'm sure there's a training regime just, like in any
AS: You don't start out with a shot-put and throw it, you
know, fifty you know ....
AS: Right, whatever. You gotta start small.
J: With like an acorn for instance.
AS: I don't know. How do you learn how to, I guess it's
like anything. You practice, you get better. You pull
things with your penis. You go from an orange to a 13
inch TV to maybe a motorcycle.
J: Can I, can I put something out here, and if you don't
like what I'm about to say then go ahead and just say
Jody shut up. We have so many concert tickets right
now, just flying out of all our pockets - I say
tomorrow morning if someone is willing to come in here
and let me tie something onto their penis and if they
can pull it like five feet.... Maybe something like
five pounds, if they can pull it five feet here in the
studio, we'll give them concert tickets. Their choice.
AS: Well, I'll go along with that. But I mean I think it
should be a 'bid' thing. For example, Joe can call up
and say yeah I'll pull an orange for you five feet, big
deal. Who wants to see that?
J: But if someone else can pull a 13 inch TV?
AS: Right. Somebody who's gonna do something kind of
amazing, yeah we'd love to have you.
J: So their choice Godsmack & Deftones tickets or
AS: Three Doors Down.
J: Three Doors Down with Tantric and Lifehouse.
J: Their choice.
B: We're gonna see an amazing spectacle of penis pulling.
J: I wanna see some penis pulling.
B: I guarantee, I guarantee there's people out there that
can pull a lot of stuff with their penis and we're
gonna hear from them.
AS: Do you think there's a lot of people out there that
spend a lot of time practicing? I mean if they did,
wouldn't we hear about them in the news or like in some
show, like in the Jim Rose Circus?
J: You know certain people collect stamps? Other people
pull stuff with their penis. It's whatever your hobby
AS: Well this guy did a freakin' Jeep. I don't think
anybody is gonna do that well.
J: That's incredible.
AS: Yes it is. How about a Volkswagen?
J: Some sort of smallish Cabriolet type thing?
AS: A little lighter, yeah?
J: No, we don't need something like that. I'm sayin' like,
you know, some sort of studio equipment that weighs
like ten pounds.
AS: Let's say, for example, we get 20 people to call in and
say yes, I can pull stuff with my penis. Why don't we
get all 20 in to pull the Volkswagen?
AS: That'll make the news.
J: That'd be something.
AS: Alright. Well, check it out. 421-107. It's 7:21. Coming
up we're gonna give you a chance to win some
Godsmack/Deftones tickets in a different sort of way
and we're still waiting for the Stone Temple Pilots
"Days of the Week."
J: Yeah, (clapping) whew.
AS: It should be here any minute now.
[Recorded Voice Over: 107.7, The End, Music News You
Can Use -- with Steve the Producer. Now.]
J: If you enjoyed Weezer's new "Green" album you waited
four years for, it looks like you're not going through
AS: You have it, we have it.
J: We have what?
AS: We have the new Stone Temple Pilots.
J: Oh nice.
AS: Alright, do that.
J: Alright, I'll do this real quick.
J: Uh, Weezer used one day off to go into the studio and
start recording new songs already. They've already laid
down demos for twelve new songs about sixteen minutes
of music. I'd imagine in case you are wondering, among
the new songs one is called "American Gigolo," there is
an instrumental called "Burnt Jamb" that is, j-a-m-b
like a doorjamb because they are clever. Mikey Walsh
the bassist says that they do want to put out a new
album every year just like the bands in the sixties use
to and that waiting four years was obviously a bad
Again Endless Summer Concert #6 are down with Tantric
and Lifehouse. Wednesday July 11, Pickeria, tickets on
sale Friday 4:00 p.m. at Ticketmaster $27.50. Also
Endless Summer Concert #7, Godsmack and Deftones
Friday, July 13 at the Gorge. Tickets go on sale 11a.m.
Ticketmaster, $35.00. Of course, listen all week to win
tickets before you can buy them here on the morning
show and inside of Endmail at 107.7.com for extra
chances to win.
J: That's it.
J: I-5 north bound heavy at south bound 88th street and
then messy from Oliver Place to Seattle Bridge. 1-5
south bound congested from 1-96 southwest to northeast
185th street and shoreline continues heavily at north
gate also sluggish approaching the ship Canal Bridge.
1-5 express lanes are heavy through the Convention
Center. 405 north bound congested from the Rednest
Curve to Colecreek Parkway. 405 South bound slow from
532 Northeast 85th Street and then heavy at Northeast
44th south. Stop and go through the Red Nest Curve and
then messy from 167 to the 1-5 Interchange at South
Center. 520 East Bound heavy stop and go throughout the
arboretum and that's your End traffic.
J: You ready over there?
AS: Ah, yeah, I'm, I'm just thinking to myself, you know I
bet if we had twenty guys pulling on a Volkswagon with
their penises Q13 would cover it.
J: You think?
AS: Yes, I think they will cover it.
J: But we don't, do we have enough concert tickets for
B: Oh yeah.
AS: I'll buy them.
AS: Yes, alright, Brad.
MV: Yeah, I gotta question on this whole penis thing.
MV: Well, dude seriously, how could you possibly attach it?
I mean are we talking duct tape? Are we talking .....
J: No. No.
AS: Good question.
J: No, no. I'm thinking that we would tie some sort of
string-like fabric around ...
AS: No. You tie string and something that heavy that's
gonna like rip the skin.
MV: Yeah. Jody I love you but you gotta understand its not
built quite like that.
J: No, I've seen penises once or twice before. I can
imagine that maybe bungee cord?
AS: Use one of hair scrunchies or like a wristband or
something and double-up and then tie some string to
J: Well how?
MV: Yeah, well, I don't know.
AS: Hair scrunchies!
MV: I'm all for the contest and, more power to you, but
that poor guy. If we're talking like kite strings, god
AS: No, right. That would like sever the head right off,
especially for the circumcised nadoos.
J: Oh, we're not doing it around the head, we're doing it
closer to the bottom of the shaft, you gotta get your
whole, I mean weights and levers.
MV: Yeah, but there's not like knobs down there. I mean
what are you gonna .....
AS: There's not really anything to hold on to, it would
slip all the way to the mushroom, if you will.
J: There's not knobs. Are you sure?
MV: Last time I checked. No, that's what I was curious
about. I think it's a great idea, but man, it's gonna
have to be tape or something.
AS: Well you know Brad this is all for not if you don't
actually know how to pull anything with your penis or
have never practiced it, right.
J: I'm gonna have Bob, the producer, pull down his pants
real quick and we're gonna figure out some sort way to
tie stuff on it.
AS: Could you get us a hair crunchie please?
J: We gotta trial and error here - is the way to attach
things to your penis.
AS: First we'll have Bob try it. Thank you very much and
that's a fine point, you don't want to use like flimsy
MV: Absolutely not. It's bad, bad news.
J: Nobody's duct taping anything to anybody's penis,
believe you me.
AS: Alright. We'll investigate it, we'll look into it and
see how we can actually do it. Alright, coming up next
here check this out, this is ah, I'm not going to play
the whole thing or anything, just a piece of the new
Stone Temple Pilots called "Days of the Week". [Plays
two lines of music]. Alright that's next. The whole
thing on the End.
[Lengthy Commercial Break]
* * * * *
June l, 2001
AS: Andy Savage
B: the Producer
MV: Male voice
AS: Alright, you ready for some music news? It might take
Carl a little while to get the harness on.
[Recorded Voice Over: 107.7, The End, Music News You
Can Use -- with Steve the Producer. Now.]
J: So, if you've been watching VH-1's "Most Shocking
Moments Of Rock. Listen to this. Mark McGrath, he's
from Sugar Ray, the front man, he's hosting it, he's
got a shocking past himself. If you've ever seen
Backstage Sluts, 1, 11 and 111. He was in that, doing
some shocking stuff. He agreed to do the show as long
as the network downplayed his involvement in that
series of porn films. He's in it, Fred Durst is in it,
and they're doing very nasty things with groupies. The
series director, porn star Matt Zane shot back at Mark
McGrath and he said that it was Mark's decision to be
in the film and even signed a release form. To have a
fellow artist censor you for your personal reasons is
the lowest of low acts that on can commit. So Matt
Zane, pom star, firing back at Mark McGrath. So
basically Mark was just like sure I'll host it if you
pretend like you never saw me in Backstage Sluts.
Blink 182 news. Drummer Travis Barker has a big
problem. He's been telling people that a deranged
stalker has been after him, broke into his house a
number of times, left letters in each room that read
``I'm watching you, lock your doors.'' And then the
next day, letters again, ``P.S., lock your doors.''
Travis, obviously freaked out, says since the incident
occurred he invested in two 140-pound Rottweillers and
now carries a gun to protect his family. He says it's
not really him that he's worried about, if it comes
down it he can kick the guy's ass. He's worried about
his girlfriend. Well you know, if it comes down to him
or this weird guy, he's like you know I'll just beat
him up. But if my girlfriend's in the house while I'm
on tour, that's what I'm worried about. He says now if
anyone comes into my house, they're gonna be sorry.
Rehab. Singers Brooks and Danny Boone say they've
always felt like oddballs in their native Atlanta
because they're white rappers. Hmmm, I wonder why they
would feel weird about that? They say we're the only
ones that I know of that are rapping. They say that
people usually look at white rappers as a novelty act.
But, ``To me, rhyming is poetry and that is dateless.''
J: If I can get some of these penis guys out of the way
here, I have some. .
AS: Wait a minute. I hate to interrupt, but we have a
problem here. Apparently crazy Carl can't get aroused
enough to get the harness on.
J: Oh really.
C: Actually, the harness that actually goes around the
scrotum is a little tight and I'm worried about....
AS: Your testicles are too large.
C: We can't snap it through.
J: You're supposed to pull them through there crazy Carl.
It's like a belt.
AS: Kevin, could you go over and help him?
J: Oh God.
K: That's not in my job description.
AS: Well Carl do what you gotta do. Would anybody else like
to try? I mean if you can't get the harness on we can't
pull the car.
J: I think Joe the modulator should step up and try.
AS: Yeah virgin.
J: While he's doing this, let me just mention this one
thing. If you sign up for Endmail at 1077theend.com for
your exclusive invitation to another penny pincher
concert with Rehab. It's Tuesday, June 12th at
Graceland. It's just a buck seven with your printed
Endmail invite. For Endmail listeners only. Of course,
you cannot get in unless you are on the Endmail list.
Just another reason to sign up for Endmail at
AS: And get there early or you still may not get in 'cause
it's kind of a first come first serve.
J: Not kind of.
AS: There's a fire code you know.
J: It is.
AS: Here's traffic.
J: I-5 Southbound heavy to just before the Orange County
line. 405 Northbound just heavy north of northeast
44th. 405 Southbound heavy just South of Southeast
124th. And 167 Northbound heavy off 15th Street to the
Green River. And heavy approaching the 405 interchange,
and that's in traffic.
AS: Alright. Kevin from Love Zone, these harnesses, are
they specifically made for larger men or what is the
deal here? I mean, how big do you have to be to get
into this harness?
K: I believe that they're kind of a one size fits all.
AS: Yeah? So you can be very small and it doesn't matter?
I'm not trying to make fun of anybody here. But, I
mean, maybe Carl has a half inch whatever and can't get
it thru the harness.
MV: I think Carl wasn't smart enough to it button and so
he's making up a story about ``Oh, I'm too big to put
J: Joel's making fun of crazy Carl. I feel things tensing
up in the studio. Joel, he's crazy. You never poke fun
at a crazy man.
AS: Alright. All you guys that are here, could you please
grab a harness from Kevin.
AS: And try and put it on.
AS: And then we'll tie a piece of rope to it. And then
we'll yank you around like dogs .
[Lengthy Commercial Break]
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Entercom Seattle License, LLC, Licensee of Station
KNDD(FM),Seattle, Washington, Memorandum Opinion and Order
I dissent from today's decision upholding an
Enforcement Bureau decision that I believe is inadequate.
In response to complaints about two separate broadcasts on
KNDD, the Enforcement Bureau proposed a forfeiture of $7000
for each incident of airing indecent material. In a
subsequent order, the Bureau reduced the fine for each
broadcast by $1000. I am concerned that this fine for what
the majority concludes is a violation of the indecency
statute will be easily absorbed as a ``cost of doing
business.'' I am further troubled that the Bureau, rather
than the Commissioners, made the initial determination. Our
enforcement actions should send a message that licensees
cannot ignore their public interest responsibilities. The
Commission's action today fails to do so.
COMMISSIONER KEVIN J. MARTIN
Re: Entercom Seattle License, LLC, Licensee of Station
KNDD(FM), Seattle, WA, Memorandum Opinion and Order
Consistent with my past statements, I believe we should
be fining broadcasters on a ``per utterance'' basis.53
1 See Letter from Chief, Investigations and Hearings
Division, Enforcement Bureau to Entercom Seattle License,
LLC, dated July 5, 2001.
2 See Letter from John C. Donlevie, Executive Vice
President, Entercom Seattle License, LLC, to Chief,
Investigations and Hearings Division, Enforcement Bureau,
dated August 15, 2001.
3 See Program transcript, Attachment.
4 Id. at 10-13, 13-15, 18-19.
5 Id. at 12, 15.
6 Id. at 18-19.
7 Entercom Seattle License, LLC, Notice of Apparent
Liability for Monetary Forfeiture, 17 FCC Rcd 1672 (EB
2002). The complaint also alleged that KNDD(FM) broadcast
indecent material on May 31, 2001. 17 FCC Rcd at 1674, n.
9. However, the Bureau denied the complaint with respect
to this material.
8 See Response to Notice of Apparent Liability for
Forfeiture of Entercom Seattle License, LLC, dated February
27, 2002. (``Entercom NAL Response'').
9 47 C.F.R. § 1.80(f)(3).
10 Entercom NAL Response at 4-5.
11 Id. at 6-10.
12 Id. at 2, n. 1.
13 Id. at 10, n. 5.
14 Entercom Seattle License, LLC, Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 18347 (EB
15 Entercom NAL Response at 4.
16 Application for Review at 4-5.
17 Id. at 6-11.
18 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)).
19 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. §1464 and Enforcement Policies
Regarding Broadcast Indecency (``Indecency Policy
Statement''), 16 FCC Rcd 7999, 8002, ¶¶ 7-8 (2001)
(emphasis in original).
20 In FCC v. Pacifica Foundation, the Court quoted
the Commission's definition of indecency with apparent
approval. FCC v. Pacifica Foundation, 438 U.S. 726
(1978). In addition, the D.C. Circuit Court of Appeals
upheld the definition against constitutional challenges.
Action for Children's Television v. FCC, 852 F.2d 1332,
1339 (D.C. Cir. 1988) (``ACT I''); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991),
cert denied, 112 S. Ct. 1282 (1992) (``ACT II''); Action
for Children's Television v. FCC, 58 F.3d 654, 657 (D.C.
Cir. 1995), cert denied, 116 S. Ct. 701 (1996) (``ACT
21 ACT I, 852 F. 2d 1332.
22 ACT III, 58 F.3d 654.
23 Entercom NAL Response at 3.
24 Application for Review at 3-5.
25 Attachment at 10, 18.
26 Entercom Seattle License, LLC, 17 FCC Rcd at
18349, ¶ 8.
27 Id. at 17 FCC Rcd 18350, ¶ 12.
28 Entercom Seattle License, LLC, 17 FCC Rcd at
1675, ¶ 9. Attachment at 10-11, 16, 18-19.
29 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9
(emphasis in original).
30 Id. at 8002-15, ¶¶ 8-23.
31 Id. at 8003, ¶ 10.
32 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).
33 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'').
34 Application for Review at 4-5.
35 See Entercom Seattle License, LLC, 17 FCC Rcd at
1674, ¶ 9.
36 Entercom cites Letter from Chief, Complaints and
Investigations Branch, Enforcement Division, Mass Media
Bureau ( Oct. 26, 1989).
37 See, e.g., Complaints Against Various Broadcast
Licensees Regarding Their Airing of The ``Golden Globe
Awards'' Program, Memorandum Opinion and Order, 19 FCC Rcd
4975 (2004) (petitions for reconsideration pending)
(Commission reverses Enforcement Bureau's initial finding
that isolated use of the ``f-word'' by a performer is not
38 Id. at ¶ 12.
39 Application for Review at 8.
40 Id. at 8-9.
41 Entercom cites the following cases: Capstar TX
Limited Partnership (KXTQ(FM)), 15 FCC Rcd 19615, 19619 (EB
2000)(segment with discussion of deformities in male
genitals). Independent Group Limited Partnership
(WWWE(AM)), 6 FCC Rcd, 3711, 3712 (MMB 1990), which
included a humorous discussion of a man's ``birth defect''
-- a penis on his head, as well as discussion of
masturbation, oral sex, copulation, and urination; Goodrich
Broadcasting, Inc. (WVIC-FM), 6 FCC Rcd 2178, aff'd 6 FCC
Rcd 7484 (MMB 1991) which involved vulgar, repeated and
gratuitous references to sexual organs and activities in
the context of humorous discussions concerning an allegedly
true incident in which a man's testicle was trapped in the
drain of a hot tub; KFI, Inc.(KFI(AM)), 6 FCC Rcd 3699,
3700 (MMB 1989)(discussion of the size of the genitals of
male celebrities and political leaders, including
commentary on the size of erect genitals relative to those
that are not erect as well as on how size affects sexual
performance; The Rusk Corporation (KLOL(FM)), 5 FCC Rcd
6332, 6334-35 (MMB 1990), which included an on-air
discussion concerning shaving the female genitalia and on-
air references to ``Aunt Vagina.'' This precedent is cited
in the Forfeiture Order. 17 FCC Rcd at 18350, n. 11.
42 Attachment at 10, 18.
43 See Indecency Policy Statement, 16 FCC Rcd at
8004, citing Infinity Broadcasting of Pennsylvania
(WYSP(FM)), 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (finding vulgar and lewd references to male
genitals, including discussion of use of testicles as Bocci
balls, met the indecency definition).
44 Application for Review at 9-11.
45 See Indecency Policy Statement, 16 FCC Rcd at
8010-13. See also, Entercom Seattle License, LLC, 17 FCC
Rcd at 18350, ¶ 10.
46 Indecency Policy Statement, 16 FCC Rcd at 8002-15.
See, e.g., Capstar TX Limited Partnership (KTXQ(FM)),
Notice of Apparent Liability for Monetary Forfeiture, 15
FCC Rcd 19615, 19619 (EB 2000)(forfeiture paid);
Independent Group Limited Partnership (WWWE(AM)), Notice of
Apparent Liability for Monetary Forfeiture, 6 FCC Rcd,
3711, 3712 (MMB 1990); KFI, Inc. (KFI(AM)), Notice of
Apparent Liability for Monetary Forfeiture, 6 FCC Rcd 3699,
3700 (MMB 1989); Goodrich Broadcasting, Inc. (WVIC-FM),
Notice of Apparent Liability for Monetary Forfeiture, 6 FCC
Rcd 2178, Apparent Liability for Forfeiture, Forfeiture
Order, 6 FCC Rcd 7484 (MMB 1991); The Rusk Corporation
(KLOL(FM)), Notice of Apparent Liability for Monetary
Forfeiture, 5 FCC Rcd 6332, 6334-35 (MMB 1990).
47 521 U.S. 844 (1997).
48 122 S. Ct. 1389 (2002).
49 See, e.g., FCC v. Pacifica, 438 U.S. 726; ACT III,
58 F.3d 654; ACT I, 852 F.2d 1332.
50 See Infinity Broadcasting Operations, Inc. (WKRK-
FM), Apparent Liability for Forfeiture, Forfeiture Order,
18 FCC Rcd 26360, ¶ 5 and n.1 (2003), recon. denied,
Memorandum Opinion and Order 19 FCC Rcd 4216 (2004)
(petition for reconsideration pending).
51 47 C.F.R. § 1.115(g).
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'').