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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)      )     Facility No. 12664
Rexburg, Idaho                    )     JJS
                                 )
                                 )

                           FORFEITURE ORDER

                                
Adopted:  October 11, 2000                        Released:  
October 12, 2000 

By the Chief, Enforcement Bureau:
                                                  
                        I.   INTRODUCTION

     1. In this forfeiture order, we impose a seven thousand 
dollar ($7,000) forfeiture against Communicast Consultants,  Inc. 
(``CCI''), licensee of  KRXK(AM), Rexburg, Idaho.   We find  that 
CCI  violated  18  U.S.C.  1464  and  Section  73.3999  of   the 
Commission's rules, 47 C.F.R.  73.3999, by broadcasting indecent 
material.

     2. On July 14, 2000, the Chief, Enforcement Bureau, issued a 
Notice of  Apparent Liability  for Forfeiture  in the  amount  of 
seven  thousand  dollars   ($7,000)  against  CCI.    Communicast 
Consultants, Inc., DA 00-1567 (released July 14, 2000) (``NAL'').  
CCI filed its response on September 7, 2000.

                         II.  BACKGROUND

     3.   The Commission received a  complaint alleging that  CCI 
broadcast indecent  material  during a  Spanish-language  call-in 
talk show on  or about January  12, 1999, between  8 a.m. and  10 
a.m.  A transcript of the  broadcast in question was attached  to 
the NAL.  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

     4.   In arguing in  its response that  the material was  not 
indecent, CCI claims that the broadcast used ``correct anatomical 
terms'' that  would be  heard in  any clinical  or  instructional 
course on human sexuality.  CCI asserts that the material was not 
patently offensive and that the NAL failed to consider adequately 
the context of the  conversation.  Additionally, CCI argues  that 
the NAL  is  defective  because  it did  not  make  any  findings 
concerning the contemporary community  standards of the  Spanish-
speaking community  in the  Rexburg, Idaho,  area.  According  to 
CCI, nearly all children in the  Rexburg area would have been  in 
school when the program was broadcast and the Commission has  not 
demonstrated that any children  heard the broadcast.  CCI  claims 
that even  if the  program were  indecent, there  was no  willful 
violation because the programming  was received by satellite  and 
the station had no  way of knowing what  would be broadcast.   It 
also asserts that approximately  thirty other stations  broadcast 
the program in question  and that the  Commission has engaged  in 
``selective enforcement'' by taking action only against KRXK(AM).  
Finally, CCI argues that a $7,000 forfeiture exceeds the  profits 
KRXK(AM) has earned during the  period CCI has been the  licensee 
and that such a  forfeiture would be ``economically  crippling.'' 
(Emphasis in Original).

     5.   First, we reject CCI's  argument that the material  was 
not indecent.  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)).  CCI does not dispute that  the 
material discusses  sexual activities,  but  it denies  that  the 
material is  ``patently offensive.''   While the  use of  certain 
terms does not automatically  make material indecent, we  believe 
the  graphic  sexual  references,  as  well  as  the  announcer's 
comments, laughter, and jokes, show that the material was offered 
in  a  pandering,  titillating  manner,  rendering  the  material 
``patently offensive.'' 

     6.   CCI's argument that the  Commission must have  evidence 
about the community standards  of the Spanish-speaking  community 
in the Rexburg area  in order to find  an indecency violation  is 
incorrect.  The   Commission's   interpretation   of   the   term 
``contemporary  community  standards''  is  consistent  with  the 
definition set forth in the  Supreme Court's decision in  Hamling 
v. United States, 418 U.S. 87 (1974), reh'g denied, 419 U.S.  885 
(1974).  In  that case,  which  involved obscenity,  ``the  Court 
explained that the purpose of `contemporary community  standards' 
was to ensure that material is  judged neither on the basis of  a 
decisionmaker's  personal  opinion,  nor  by  its  effect  on   a 
particularly  sensitive   or  insensitive   person  or   group.''  
Infinity Broadcasting Corporation  of Pennsylvania (WYSP(FM)),  3 
FCC Rcd 930, 933 (1987) (subsequent history omitted), citing  418 
U.S. at 107.  The Court  stated that decisionmakers need not  use 
any precise geographic area in evaluating material.  3 FCC Rcd at 
933, citing  418 U.S.  at 104-05.  Consistent with  Hamling,  the 
Commission's evaluation of allegedly  indecent material is  ``not 
one based  on  a local  standard,  but  one based  on  a  broader 
standard for broadcasting generally.''  3 FCC Rcd at 933. We also 
reject CCI's  suggestion  that  we should  not  take  enforcement 
action because most children would  be in school during the  time 
of the  broadcast.   Congress  has  directed  the  Commission  to 
enforce the ban  on indecent broadcasts  during the morning  time 
period at issue  in this  case, and  the United  States Court  of 
Appeals for  the District  of Columbia  Circuit has  upheld  that 
directive.  See Action for Children's Television v. FCC, 852 F.2d 
1332, 1341 (D.C. Cir. 1988).  

     7.   CCI may not  correctly contend that  the violation  was 
not willful because the program was a syndicated program received 
by satellite and the station had no way of knowing what would  be 
broadcast.  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).  In this case, CCI knew it was  broadcasting 
the program.  The Commission  has emphasized ``that the  licensee 
is ultimately  responsible  for  all  programming  aired  on  its 
station, regardless of its source.''  Revision of Radio Rules and 
Policies, 7 FCC Rcd 6387, 6401 (1992).  Moreover, CCI could  have 
used a delay mechanism  to monitor the  broadcast to ensure  that 
inappropriate  material  was  not  aired.   Since  CCI  knowingly 
broadcast the  program,  its  actions  were  willful  within  the 
meaning of the statute.

     8.   We also reject the argument that our decision to  issue 
an NAL represents improper ``selective enforcement.''  As is  the 
case with virtually all of our indecency cases, we initiated this 
investigation in response to a complaint filed against  KRXK(AM).  
If we had  received complaints  against other  stations that  had 
broadcast the same program, we would have similarly initiated  an 
investigation and taken appropriate enforcement action.  Congress 
has  directed  us  to  enforce  the  restrictions  on   broadcast 
indecency, and CCI has not shown that it was treated  differently 
than any other station against which a complaint was filed.

     9.   Finally, we  cannot accept  CCI's claim  that a  $7,000 
forfeiture  would  be   ``economically  crippling''  to   station 
operations.  CCI did not  provide any financial documentation  to 
support that claim.  Moreover, after  the NAL  was released,  CCI 
received authorization  to assign  the  license for  KRXK(AM)  to 
Pacific Empire  Holdings  Corp.  See  File  No.  BAL-20000403ABH, 
granted July 25, 2000.  CCI has not shown that it would be unable 
to pay the forfeiture from  the proceeds of the sale.   Moreover, 
once CCI closes on the sale,  the forfeiture will no longer  have 
an impact upon  station operations.  After  reviewing all of  the 
factors required by Section 503(b)(2)(D) of the Act, we believe a 
$7,000 forfeiture is appropriate in this case. 

                      IV.  ORDERING CLAUSES

     10.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the Act, 47 U.S.C.  503(b), and Sections 0.111,  0.311 
and  1.80(f)(4)   of   the   Commission's   rules,1   Communicast 
Consultants, Inc.  IS LIABLE  FOR A  MONETARY FORFEITURE  in  the 
amount of  seven  thousand  dollars  ($7,000),  for  its  willful 
violation of  18  U.S.C.    1464  and  Section  73.3999  of  the 
Commission's rules, 47 C.F.R.  73.3999.

     11.  Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of the Commission's rules within  30 
days of the release of this Forfeiture Order.  If the  forfeiture 
is not paid within the period specified, the case may be referred 
to the Department of Justice  for collection pursuant to  Section 
504(a) of the  Act, 47 U.S.C.   504(a). Payment  may be made  by 
mailing a check or  similar instrument, payable  to the order  of 
the   Federal   Communications   Commission,   to   the   Federal 
Communications Commission,  P.O.  Box  73482,  Chicago,  Illinois 
60673-7482.  The payment should note the NAL/Acct. No. referenced 
above.  Requests  for  full  payment under  an  installment  plan 
should be sent to: Chief, Credit and Debt Management Center,  445 
12th Street,  S.W.,  Washington, D.C.  20554.   See 47  C.F.R.   
1.1914.

     12.   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, Idaho 
83440.

                         FEDERAL COMMUNICATIONS COMMISSION


     
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1  47 C.F.R.  0.111, 0.311, 1.80(f)(4).