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



In the Matter of                  )
                                 )
Communicast Consultants, Inc.     )     Control No. CN9900724
                                 )     NAL/Acct. No. X32080018
Licensee of Station KRXK(AM)      )     ID # 12664
Rexburg, Idaho                    )
                                 )



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                
Adopted: July 13, 2000                       Released:  July  14, 
2000 

By the Chief, Enforcement Bureau

                                                  
                        I.   INTRODUCTION

In this Notice of Apparent Liability for Forfeiture, we find 
Communicast Consultants, Inc. (``CCI''), licensee of Station 
KRXK(AM), Rexburg, ID, apparently liable  for a forfeiture in the 
amount of seven thousand dollars ($7,000) for a violation of 18 
U.S.C.  1464 and Section 503(b)(1)(D) of the Communications Act 
of 1934, as amended (the ``Act''),1 and Section 73.3999 of the 
Commission's rules, 47 C.F.R.  73.3999, by broadcasting indecent 
material. 


                         II.  BACKGROUND

The Commission received information indicating that Station 
KRXK(AM), Rexburg, ID, may have violated 18 U.S.C.  1464 by 
broadcasting allegedly indecent material during a Spanish 
language call-in talk show on or about January 12, 1999, between 
8 a.m. and 10 a.m.  Attached is a transcript of those portions of 
the allegedly indecent broadcast that are the subject of this 
action, taken from a tape submitted by the complainant.  We 
issued letters of inquiry, asking CCI to comment on the 
complaint.  CCI responded to our inquiries, asserting that the 
material is not indecent and asking that it be allowed to provide 
a certified English translation of the Spanish program if the 
Commission decided to pursue this matter further.  On May 23, 
2000, we asked CCI to provide a certified translation.  In a 
phone conversation with Commission staff on June 14, 2000, 
counsel authorized to speak on behalf of CCI, stated that CCI 
accepts the transcript provided in the letter of inquiry and 
would not be filing a certified translation.

                      III.      DISCUSSION

Section 503(b)(1)(D) of the Act provides in pertinent part:

          Any person who is determined by the Commission, in 
          accordance with paragraph (3) or (4) of this 
          subsection, to have - violated any provision of section 
          1304, 1343, or 1464 of title 18, United States Code; 
          shall be liable to the United States for a forfeiture 
          penalty.

Pursuant to 47 U.S.C.  312(a)(6) and 503(b)(1)(D), the 
Commission has statutory authority to take appropriate 
administrative action when licensees broadcast material in 
violation of 18 U.S.C.  1464, which provides criminal penalties 
for anyone who "utters any obscene, indecent or profane language 
by means of radio communication."  

The Commission defines broadcast indecency as language or 
material that, in context, depicts or describes, in terms 
patently offensive as measured by contemporary community 
standards for the broadcast medium, sexual or excretory 
activities or organs.  Infinity Broadcasting Corporation of 
Pennsylvania, 2 FCC Rcd 2705 (1987), aff'd 3 FCC Rcd 930 
(1987)(subsequent history omitted)(citing FCC v. Pacifica 
Foundation, 438 U.S. 726 (1978)).  The United States Court of 
Appeals for the District of Columbia Circuit has upheld the 
Commission's authority to restrict the broadcast of indecent 
material at times when there is a reasonable risk that children 
may be in the audience.  Action for Children's Television v. FCC, 
852 F.2d 1332 (D.C. Cir. 1988).  The court subsequently concluded 
that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a 
properly tailored means of vindicating the government's 
compelling interest in the welfare of children.  Action for 
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. 
denied, 116 S. Ct. 701 (1996) (ACT III).

In response to our inquiries, CCI states that the call-in talk 
show in question is a syndicated program carried by station 
KRXK(AM).  CCI acknowledges that the program at issue was 
``spicy'' or ``racy.''  However, CCI argues that the ``program 
was aired on a week-day morning, when little people, (those under 
17 ) would be in school'' and that it ``was intended for 
adults.''   CCI asserts that while ``indelicate,'' the material 
was not indecent.  CCI contends that the program's ``freely 
sensual and creative approach to marital relations . . . could 
assist listening couples in bringing freshness into their 
marriage.'' CCI describes the overall message of the programming 
as ``pro-strong marriage'' and ``pro-family.''  Finally, CCI 
notes that while it does not believe the material was indecent, 
the program in question was terminated upon receipt of the 
Commission's letter of inquiry.

We are not persuaded by CCI's arguments.  The program was 
broadcast between 8 a.m. and 10 a.m., a time when there is a 
reasonable risk that children may be in the audience.  Moreover, 
as discussed above, our authority to restrict the broadcast of 
indecent material during this time period has been specifically 
upheld by United States Court of Appeals for the District of 
Columbia Circuit in ACT III.  Additionally, the cited language 
dwells at length on specific sexual activities and organs and the 
program host encourages the caller to be very graphic and 
explicit about her techniques for seducing her husband.  We find 
that such a graphic description of sexual activities and organs, 
in this context, is actionably indecent.  Citicasters Co. 
(WXTB(FM)), 13 FCC Rcd 22004 (1998), forfeiture imposed , FCC 00-
230 (released June 27, 2000).

It appears that the subject excerpts are indecent in that they 
contain language that describes sexual activities or organs in 
patently offensive terms.  Because the material aired between 8 
a.m. and 10 a.m., when there was a reasonable risk that children 
may have been in the audience, it is
legally actionable.  Thus, it appears that on or about January 
12, 1999, Station KRXK(AM), violated 18 U.S.C.  1464 by airing 
indecent programming.

Section 503(b) of the Act2 and Section 1.80(a) of the 
Commission's rules3 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.4

The Commission's Forfeiture Policy Statement sets a base 
forfeiture amount of $7,000 for transmission of indecent/obscene 
materials.5  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,6 
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.''7  After reviewing 
all of the circumstances, we believe a $7,000 forfeiture is 
appropriate in this case. 

     
                      IV.  ORDERING CLAUSES

ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the 
Communications Act of 1934, as amended, and Sections 0.111, 
0.311, and 1.80 of the Commission's rules,8 that Communicast 
Consultants, Inc. is hereby NOTIFIED of its APPARENT LIABILITY 
FOR FORFEITURE in the amount of seven thousand dollars ($7,000) 
for willfully violating Section 503(b)(1)(D) of the 
Communications Act of 1934, as amended, and Section 73.3999 of 
the Commission's rules.

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



Payment of the forfeiture may be made by credit card through the 
Commission's Credit and Debt Management Center at (202) 418-1995 
or by mailing a check or similar instrument, payable to the 
Federal Communications Commission, to the Forfeiture Collection 
Section, Finance Branch, Federal Communications Commission, P.O. 
Box 73482, Chicago, Illinois 60673-7482.  The payment should note 
the NAL/Acct. No. referenced above.

The response, if any, must be mailed to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, Federal 
Communications Commission, 445 12th Street, S.W, Room 3-B443, 
Washington DC 20554 and MUST INCLUDE the file number listed 
above.

IT IS FURTHER ORDERED that a copy of this Notice shall be sent, 
by Certified Mail/Return Receipt Requested, to Communicast 
Consultants, Inc. 341 West 1500 North, Rexburg, ID  83440.


                         FEDERAL COMMUNICATIONS COMMISSION


     
                         David H. Solomon
                         Chief, Enforcement Bureau


AttachmentRadio Station:      KRXK(AM), Rexburg, ID 
Date/Time Broadcast:     On or about January 12, 1999, between 8 
a.m. and 10 a.m.
Material Broadcast:      Call-In Talk Show
CN9900724
krxka


AN:  Announcer
LU:  Lucy (Caller)
OL:  Voice impersonating an old lady

*    *

AN:  Of course, my pet, Lucy.  What is your "whip lash"?
LU:  Well, my "whip lash" is the following:  I am married to a 
     person outside my culture.  He is North American.  And 
     fortunately he is a man who is too, mm, lit up, if you can 
     call it that.  And I am tired of hearing from people who 
     complain about their husbands.  That they don't please them.  
     In my case, it's not like that.  We have a game called "the 
     seduction."
AN:  The seduction.  But tell me about that game.  Take notes, 
     please.  The game of "the seduction" it's called.  
     (Laughter).  No, you know what, there are different games in 
     this thing of love that could help us, help many couples to 
     change the routine, to change the monotony, the every day.  
     So, tell us.
LU:  Exactly.  We do very different things.  We don't do 
     everything always repeated, repeated, repeated.  Because 
     it's very boring.  He is a person, well, most North 
     Americans are of very, very open minds.  And I have learned 
     a lot from him.  And also, of course, he likes the Latin 
     heat.  And the game consists of,  when he gets home from 
     work.  Every day, I buy "baby dolls."  (Lingerie).
AN:  Baby dolls?
LU:  Yes.
AN:  OK.
LU:  It's a different one every night.  Then, he generally likes 
     the black one.  When he arrives tired he lies down on a sofa 
     and closes his eyes and I approach very, very slowly and I 
     begin to kiss his forehead, his eyes, the nose, and like 
     that I start down.
AN:  Until where?  (Laughter).
LU:  The thing is, the game consists of not approaching so 
aggressively.  Rather, it is softly.
AN:  Ah.  Softly.
LU:  Softly.  Then he embraces me.  But I already have on my bed 
rose petals.
AN:  Rose petals.
LU:  Spread all over.
AN:  Ah, ha.
LU:  Candle with vanilla smell.
AN:  How wonderful!
LU:  With vanilla smell.  With saxophone music.
AN:  That is, a little classic jazz.  Soft.
LU:  Yes.
AN:  Romantic.  Sexy.
LU:  Exactly.  There is a North American artist called Kenny G.
AN:  Kenny G.  The one with the clarinet.
LU:  Uh, huh.  That is perfect for that occasion.

KRXK(AM)                                               2.   


AN:  Dona Mela plays the clarinet well.  (Laughter).  Let me 
     explain something to you, Lucy.  She played for many years 
     with (Unintelligible name) and she played the clarinet.
OL:  The cornet, son.
AN:  She also plays the cornet, the trombone.  (Laughter).  
     Indeed, the same as Monica Lewinsky.  Well, OK.  Monica 
     Lewinsky tacos, by the way, are now out there.  You know 
     which ones, Dona Mela?
OL:  Which ones, son?
AN:  The ones of tongue.  (Laughter).  And, Dona Mela, the new 
     Bill Clinton tacos?  The ones made of tripe (Innards).  
     (Laughter).  Hey, my pet, you were saying?
LU:  Then we go to the bedroom and I have there, in front, ice, 
strawberries and whipped cream.
AN:  Hey, my love, it looks like you have there, ready to sell 
     juice.  Well, OK, you have told me... strawberries.
LU:  Strawberries.
AN:  Strawberries.
LU:  And cream.  Like you put on ice cream.
AN:  Oh, yes, a flavored cream.  Hey, that cream, what do you use 
it for?  I have never used that.
LU:  You have never used it?  (Laughter)
AN:  To tell the truth, yes, I used it.  My old lady wanted a 
     snow.  I don't know what.  A big white snow.  Giant.  
     (Laughter).
LU:  Then I tie him on the bed.
AN:  You tie him on the bed?
LU:  I tie him.  With some "handcuffs" (In English).
AN:  Handcuffs (In Spanish).
LU:  Handcuffs (In Spanish).
AN:  Doesn't he get desperate when you tie him?
LU:  No.  He loves it.
AN:  Don't tell me!
LU:  It excites him more.
AN:  Oh, dear.
LU:  Then.  He loves it, that I tied him up.  And then I begin to 
rub the ice all over his chest.
AN:  All over his chest.
LU:  Yes.  And it is melting.
AN:  The ice or him?
LU:  (Laughter).  Both.  Because he with his excitement melts it 
much more.
AN:  Hey, does it excite you to see him excited?
LU:  Oh, yes.
AN:  While you are rubbing him with the ice, what are you doing?
LU:  It's a sensation.  My heart accelerates, and, and, I don't 
     know.  I begin to eat him.  I put the strawberries on top of 
     him and one by one I proceed to eat them.
AN:  How wonderful!
LU:  Yes.  One by one.  And in his intimate part, the one that 
excites the most, right?
AN:  Of course.
LU:   I put.
AN:  You put it on the penis?
LU:  On the penis.  I put some four strawberries.

KRXK(AM)                                               3.


AN:  Where?  How do you put them on him, huh?
LU:  That is, in a row.
AN:  Oh, my!  And what, do you put the cream on first and not on 
top of the strawberries?
LU:  Yes.  Then...
AN:  Oh, my!
LU:  One by one I start to eat them, no?
AN:  Hey, what if you make a mistake one of these days and you 
     take a bite and instead of taking it from the strawberries, 
     you take it from there, where.  (Laughter).  You have to 
     proceed carefully, right?
LU:  He likes it for me to bite it.
AN:  He likes it for you to bite it?
LU:  Yes.
AN:  Eeeeeehhh!!  (Laughter).   (Unintelligible).
LU:  He asks me: "Bite it, bite it."
AN:  He tells you that?  Hey, do you bite it hard or slow?
LU:  That is, I bite it in a way that it doesn't hurt, but 
rather, excites him.
AN:  Oh, my!  Inside?
LU:  (Unintelligible).  Yes.  And he does the same with me.
AN:  He also bites you?
LU:  Uh, huh.
AN:  Where does he bite you?
LU:  He bites me on the breast.
AN:  On the breasts?
LU:  Yes.
AN:  Doesn't it hurt you?  Aren't you very sensitive?
LU:  At first, yes.  But I told him to be more, mm.
AN:  Delicate?
LU:  More delicate.
AN:  Softer.
LU:  Because one has more sensitivity there.
AN:  It's very sensitive.  The nipples are very sensitive.
LU:  Yes.  And since they are big, mm.  He puts two strawberries 
     there and he proceeds to eat them like that also.
AN:  Oh, how wonderful!  (Laughter).
LU:  He also has cream there.
AN:  Where, between your legs?
LU:  Between my legs, and on my whole body and with his tongue he 
proceeds to remove all of it.
AN:  Oh, my!  Hey, tell me one thing.  I want to ask you one 
     thing.   (Unintelligible).   Asking here off the air, about 
     the women that have too much pubic hair.
LU:  He loves it.  But I look for a way to shave myself.
AN:  Oh, you shave yourself.  All over?
LU:  All over, all over.
AN:  All over.  It's better.
LU:  It's much better.
AN:  It's more hygienic.
KRXK(AM)                                               4.


LU:  Yes.  It's much more hygienic and also it looks ugly.  
(Laughter).
AN:  What looks ugly?  With pubic hair or without hair?
LU:  There are women that have too much, others, no.  That is, 
     generally, I leave a very little bit only.
AN:  Uh, huh.
LU:  And then, mm, God made me very voluptuous.
AN:  Uh, huh.
LU:  I have lots of curves.
AN:  Wow!
LU:  And in that part I also have it very big.
AN:  Oh, my!  That is.  (Unintelligible).  
LU:  Yes.  Everything is big.  (Unintelligible).  Big, everything 
     big. And my husband, well, although he is North American, he 
     is tall, he also has his, his parts big.  The only thing we 
     have problems with is that his penis is curved.
AN:  His what?
LU:  His penis.
AN:  Is there some problem with it being curved?
LU:  Mm, what happens is that, mm, he has to grab it first so 
that it doesn't come out.
AN:  Towards the top or the bottom?
LU:  The top.
AN   Look it.  Let's not talk about that anymore because we are 
     going to talk about that next Monday on "The Whip Lash", 
     because it's a good topic, that.  Because we have never 
     talked about that, huh?  Then that's your only problem.
LU:  Yes.
AN:  But, regarding everything else, you are very happy.
LU:  Regarding everything else we are very happy.
AN:  And you change the routine and you change the same way?
LU:  Exactly.  He.  We have a game all the time.  He makes up all 
     kinds of things.  The best thing of all is to keep the flame 
     of love.  That is, we do it in the kitchen, in the bedroom.  
     That is, one day we did it in the post office.   (Laughter).
AN:  In the post office?
LU:  In the post office.
AN:  Don't tell me!  In the post office!   (Laughter).
LU:  Yes.
AN:  Hey, it must have been exciting, no?
LU:  Quite a bit, quite a bit.  That is, we do it in unusual 
places.
AN:  Forbidden.
LU:  Forbidden, more than anything.  But, the thing is that he is 
     a man who is very, very, you would think he is Latin.  
     Because he is very passionate.  I am also the same.  That 
     is, we both are.
AN:  Hey, know what?  I am going to tell you something, Lucy.  I 
     think you are doing the right thing.  I congratulate you.  
     And if you keep on like that you will keep your husband and 
     you will keep your marriage very well and you will keep your 
     love alive and that is very good, to make combinations, to 
     have contests, and to do many things differently from those 
     you do every day.  Lucy, may God bless you.  Have a good 
     weekend.
LU:  Thank you very much.  May God bless you and may you continue 
your success always.
AN:  I hope you keep calling.
*    *
_________________________

1 47 U.S.C.  503(b)(1)(D).

2 47 U.S.C.  503(b).

3 47 C.F.R  1.80.

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

5 The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17113 
(1997), recon. denied 15 FCC Rcd 303 (1999) (Forfeiture Policy 
Statement); 47 C.F.R.  1.80(b).

6 12 FCC Rcd at 17110.

7 47 U.S.C.  503(b)(2)(D).

8 47 C.F.R.  0.111, 0.311 and 1.80.