Click here for Microsoft Word Version
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
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,
By the Chief, Enforcement Bureau
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
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.
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
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
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
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
AttachmentRadio 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
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
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: 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
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.
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.
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: 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.
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
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.
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?
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?
AN: Doesn't it hurt you? Aren't you very sensitive?
LU: At first, yes. But I told him to be more, mm.
LU: More delicate.
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.
LU: Yes. It's much more hygienic and also it looks ugly.
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.
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.
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).
AN: Hey, it must have been exciting, no?
LU: Quite a bit, quite a bit. That is, we do it in unusual
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
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
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.