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

In the Matter of                   )    
                              )
CITICASTERS CO.                    )    Case No. EB-00-IH-0064
                              )    NAL/Acct. No. X32080030
Licensee of Station KSJO(FM),      )    Facility #4117
San Jose, California                    )    JJS
                              )    
 

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE
                                
Adopted:  September 25, 2000            Released:  September  26, 
2000 

By the Chief, Enforcement Bureau:

                         I. Introduction

     1.   In this Notice of Apparent Liability for Forfeiture, we 
find  Citicasters  Co.  (``Citicasters''),  licensee  of  Station 
KSJO(FM), San  Jose, California,  apparently liable  for a  seven 
thousand dollar ($7,000) forfeiture for an apparent violation  of 
18 U.S.C.  1464 and  Section 73.3999 of the Commission's  rules, 
47 C.F.R.  73.3999, by broadcasting indecent material. 

                         II. Background

     2.   The  Commission  received  a  complaint  concerning   a 
broadcast during the  ``Lamont &  Tonelli Show''  on February  9, 
2000 at approximately 8:15 a.m.  According to the complainant,  a 
guest on the program provided in great detail instructions on how 
to perform fellatio.  A transcript of portions of the program, as 
recalled by the complainant, is attached.

     3.   By letter dated June 8, 2000, we requested  Citicasters 
to comment on the complaint.   Citicasters filed its response  on 
July 7,  2000.   In  its response,  Citicasters  states  that  it 
``cannot confirm'' that  the material aired  as described in  the 
complaint.  Citicasters states,  however, that  ``on February  9, 
2000, a guest on their show  did discuss, in clinical terms,  the 
proper technique for performing fellatio.''  On July 12, 2000, we 
requested  further  information,  and  Citicasters  responded  on 
August 10, 2000.  In  the further response, Citicasters  declared 
that on February 9, 2000, on air personalities Tod Fryfogle (also 
known as ``Lamont Hollywood'') and Paul Tonelli had on as a guest 
Dr. Natasha Terry (a/k/a Janina Valdez).  Citicasters states that 
Dr. Terry is a nationally recognized sex therapist and  certified 
clinical sexologist,  and that  she was  qualified to  conduct  a 
clinical discussion of human sexuality.  Citicasters also  states 
that Dr. Terry  has been a  guest on the  Lamont & Tonellli  show 
more than  a dozen  times over  11 years.   Messrs. Fryfogle  and 
Tonelli do not specifically recall  what they discussed with  Dr. 
Terry prior to  interviewing her  on February 9,  but they  ``are 
confident that we emphasized the importance of keeping all on-air 
discussions of sexual matters clinical.''


                         III. Discussion

     4.   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.''  

     5.   The Commission  has defined  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) (citing Pacifica  Foundation, 
56  FCC 2d  94,  98  (1975),  aff'd  sub  nom.  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).

     6.   We reject Citicasters'  contention that the  discussion 
was not indecent because the discussion was clinical.  While  Dr. 
Terry may have been  qualified to lead  a clinical discussion  of 
sexual techniques,  the disc  jockeys' comments  on her  material 
show that the material was offered in a pandering and titillating 
manner.  Specifically, the disc  jockeys' invitation to have  Dr. 
Terry use  a prop  on a  radio program,  and their  laughter  and 
statements (such as ``oh yeah,  baby'') while she conducted  that 
demonstration,  show  that  the  material  was  intended  to   be 
pandering and titillating, as opposed to a clinical discussion of 
sex.  We therefore find that this material appears to be indecent 
because  it  contains  language  that  describes  sexual   and/or 
excretory activities  or  organs  in  patently  offensive  terms.  
Moreover, while the complainant did not provide us with an  exact 
transcript of the  broadcast, we  find that she  has provided  us 
with sufficient  context  to  make  the  determination  that  the 
broadcast was  indecent.   Where  ``the goals  of  this  internal 
Commission procedure can be achieved by other means, we will  not 
be diverted from  pursuing an otherwise  legitimate complaint  by 
the  lack  of  direct,   off-air  recordings  or   transcripts.'' 
Nationwide Communications, Inc.  (KLUC-FM), 6 FCC  Rcd 3695  (MMB 
1990).  Because  the material  aired at  around 8:15  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 
February 9, 2000, Station KSJO(FM)  violated 18 U.S.C.  1464  by 
airing indecent programming.  

     7.   Section 503(b)  of the  Act, 47  U.S.C.   503(b),  and 
Section 1.80(a) of the Commission's  rules, 47 C.F.R.   1.80(a), 
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.    See  Southern   California 
Broadcasting Co., 6 FCC Rcd 4387 (1991).

     8.   The Commission's  Forfeiture  Policy Statement  sets  a 
base  forfeiture   amount   of   $7,000   for   transmission   of 
indecent/obscene materials.1   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.''  See  12  FCC Rcd  at  17110.   After 
reviewing  all  of  the   circumstances,  we  believe  a   $7,000 
forfeiture is appropriate in this case. 
     
                      IV. Ordering Clauses

     9.    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,2   that 
Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY  FOR 
FORFEITURE in the amount of  seven thousand dollars ($7,000)  for 
willfully violating 18 U.S.C.   1464 and Section 73.3999 of  the 
Commission's rules.
 
     10.                                                   IT  IS 
FURTHER ORDERED,  pursuant to  Section 1.80  of the  Commission's 
Rules, that within  thirty days  of the release  of this  Notice, 
Citicasters 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.

     11.   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 should note the 
NAL/Acct. No. referenced above.

     12.   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.

     13.   IT IS FURTHER ORDERED that a copy of this Notice shall 
be  sent,  by   Certified  Mail/Return   Receipt  Requested,   to 
Citicasters' counsel,  John  M.  Burgett,  Esq.,  Wiley,  Rein  & 
Fielding, 1776 K Street, N.W., Washington, DC 20006.



                         FEDERAL COMMUNICATIONS COMMISSION



     
                         David H. Solomon
                         Chief, Enforcement BureauRadio Station:      KSJO-FM, San Jose, CA
Date/Time Broadcast:     February 9, 2000, at approximately 8:15 
a.m.
Material Broadcast: Lamont & Tonelli Show
EB-00-IH-0064
ksjo1



Complainant states:

Specifically, the subject of today's broadcast was a guest (a 
woman) who was giving in great detail the steps in which to 
perform fellatio.  The station's on air personalities - ``Lamont 
and Tonelli'' - commonly refer to this sexual act as `getting a 
hummer.'

Although I do not have a tape or word for word transcription of 
the program, the portion of the show, which I did hear, went 
something like this:

(woman)        ``....she should go up and down the shaft about 
               five times, licking and sucking and on the fifth 
               swirl her tongue around the head before going back 
               down.....''

(on air personalities)   ``Show us how its done''  (evidently the 
          guest had some sort of a prop).

(woman)        ``Well, if this was a  real penis, it would have a 
               **** ridge, I would like (sic) around the ridge 
               like this...

(on air personalities)   [laughter, comments such as `oh yeah, 
          baby']

(woman)        ``To do this right, you have to  pay attention to 
               the *****, its very sensitive. If you're a guy and 
               your (sic) looking down at your penis, its on the 
               underside of the penis, there's a slight 
               indentation, a groove that's really sensitive, 
               just lick along the underside of that...''

*          *   

_________________________

1 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).
 
2  47 C.F.R.  0.111, 0.311 and 1.80.