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

In the Matter of                )  File No. 99090433
                                )
CBS Radio License, Inc.         )  NAL/Acct.             No. 
2001320800008
                                )  Facility ID #18527
Licensee of Station WLLD(FM),   )  JWS
Holmes Beach, Florida           )

         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: December 1, 2000            Released:   December 
5, 2000   

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that CBS Radio License, Inc. (``CBS''), 
licensee of Station WLLD(FM), Holmes Beach, Florida, has 
apparently violated 18 U.S.C.  1464 and section 73.3999 of 
the Commission's rules, 47 C.F.R.  73.3999, by willfully 
broadcasting indecent language.  Based on our review of the 
facts and circumstances in this case, we conclude that CBS 
is apparently liable for a forfeiture in the amount of seven 
thousand dollars ($7,000).

                       II.  BACKGROUND

     2.  The Commission received a complaint concerning a 
September 11, 1999, broadcast on WLLD(FM), called ``The Last 
Damn Show,'' which aired between 6 p.m. to 11 p.m. that 
night.  The complaint included a tape recording of the 
entire show as well as a transcript and related tape of 
those portions of the broadcast the complainant found most 
offensive.  The transcript contained ten discrete segments, 
all of which allegedly aired before 10 p.m.  After reviewing 
the transcript and tape, we issued a letter of inquiry to 
the licensee.  

     3.  In its response, CBS describes the ``The Last Damn 
Show'' as a local concert organized by the station, which 
featured rap and hip hop music performed by award winning 
artists.  CBS acknowledges airing the performance and 
further acknowledges that performers sometimes used certain 
expletives.  Nevertheless, CBS contends that the complaint 
should be dismissed because it believes the tapes supplied 
by the complainant are confusing, imprecise as to time and 
significantly edited.  In this regard, CBS submits that 
edits are audible and that lines of otherwise unrelated 
material were spliced together in order to create the 
impression of extended bursts of profanity.  Consequently, 
according to CBS, the transcript may not accurately 
represent the context in which the words and lyrics appeared 
in relation to the concert as a whole.  In any event, CBS 
notes that the segments transcribed represent only nine 
minutes from a five-hour show.  

     4.  With respect to the particular segments, CBS offers 
various corrections (which we have accepted) and submits 
that the final three segments of the transcript aired after 
10 p.m.  As for the remaining material, CBS contends it 
contains no indecent speech.  In this regard, CBS argues 
that current community standards find acceptable material 
that regularly addresses sexual topics and that current 
prime time shows use graphic language and show graphic 
sexual scenes in programs directed at youthful audiences.  
In CBS' view, the public's acceptance of such material as 
well as the airplay given to popular songs that contain 
sexual themes or expletives demonstrate that contemporary 
community standards have evolved to the point where the 
transcribed material should not be found indecent.  In this 
regard, CBS submits that the artists' ``rampant'' popularity 
coupled with the praise coming from listeners and the 
absence of complaints following the broadcast are further 
indications that their lyrics are in step with contemporary 
community standards.  Finally, CBS argues that the context 
of the material - live, spontaneous and unscripted 
performances by persons not under control of the station, 
which contained occasional expletives and which was mixed 
with commercials, interviews, recorded music and announcer 
``patter'' - warrants a conclusion that the material was not 
indecent.  In this regard, CBS asserts that WLLD(FM)'s 
broadcast of various expletives was not intended to be 
gratuitous, pandering or titillating and that, in any event, 
the expletives were not used to convey a sexual or excretory 
meaning. 

                      III.  DISCUSSION

     5.  Section 503(b)(1) of the Communications Act (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 --- 
     ...
     (D) 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.

18 U.S.C.  1464 provides criminal penalties for anyone who 
``utters any obscene, indecent or profane language by means 
of radio communication.''  As explained below, we believe 
that portions of the ``The Last Damn Show'' were indecent 
and that the licensee's broadcast of that language was 
willful.  

     6.  The Commission has defined indecent speech as 
language 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) (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).  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.  
Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. 
Cir. 1988).  Current law holds that such times begin at 6 
a.m. and conclude at 10 p.m.  Action for Children's 
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. 
denied, 116 S.Ct. 701 (1996).   Thus, to be actionably 
indecent, the material in question must not only meet the 
standard referenced above but also air after 6 a.m. and 
before 10 p.m.  See 47 C.F.R.  73.3999.  

     7.  After carefully considering the record before us, 
it appears that CBS willfully violated our indecency rule 
with respect to the language appearing herein.  CBS 
acknowledges that it broadcast the language in question 
before 10 p.m.  The language contains patently offensive 
references to oral sex as well as sexual intercourse.  
Illustrative segments of the transcript are attached.  The 
Commission previously has found similar material that 
contains unmistakable patently offensive references to 
sexual activities to be indecent,1 and we see no basis for 
finding otherwise in this case.  In this regard, we disagree 
with CBS that the cited material or anything like it has 
ever been found acceptable under contemporary community 
standards for the broadcast medium.   

     8.  As for the context of the material, we recognize 
that the cited language occurred in connection with a live 
performance of rap and hip hop artists.  However, we see no 
reason to excuse CBS in this case.  If anything, considering 
CBS' apparent awareness of the lyrics normally appearing in 
the artists' material (see CBS' Response at p. 12), CBS 
should have taken precautions to avoid airing such indecent 
utterances.  Apparently, it chose not to do so.  Cf.  Regent 
Licensee of Flagstaff, Inc. (KZGL(FM)), DA 00-2041 (Enf. 
Bureau, released September 7, 2000) (An interview with an 
adult movie actress at an adult video store could reasonably 
give rise to indecent speech, and a licensee's failure to 
take precautionary measures is no bar to finding that the 
broadcast of indecent speech was willful).  Moreover, we 
reject CBS' argument regarding the popularity of the 
artists.  Neither the statute nor our case law confers upon 
a broadcaster the right to air indecent language simply 
because the speaker happens to be popular.  See The Rusk 
Corporation (KLOL(FM)), 8 FCC Rcd 3228, 3229 (1993).    

     9.  Section 503(b) of the Act, 47 U.S.C.  503(b), and 
section 1.80 of the Commission's rules, 47 C.F.R.  1.80, 
both state that any person who willfully or repeatedly fails 
to comply with the Act or the Commission's 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 that it was taking the action in question, 
irrespective of any intent to violate the Commission's 
rules.2  As explained above, CBS knew that it was 
broadcasting ``The Last Damn Show'' and each of the cited 
segments.  In assessing a forfeiture, we take into account 
the statutory factors set forth in section 503(b)(2)(D) of 
the Act.  Those factors include 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.3  

     10.  The Commission's Forfeiture Guidelines set a base 
forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.4  After considering all the 
facts and circumstances, we believe the base forfeiture 
amount is the appropriate sanction and that neither an 
upward nor downward adjustment should be made.   
                    IV.  ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED THAT, pursuant to 
section 503(b) of the Act,5 and sections 0.111, 0.311 and 
1.80 of the Commission's rules,6 CBS Radio License, Inc. is 
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE 
in the amount of seven thousand dollars ($7,000) for 
willfully violating the 18 U.S.C.  1464 and section 73.3999 
of the Commission's rules. 

     12.  IT IS FURTHER ORDERED THAT, pursuant to section 
1.80 of the Commission's rules,7 within thirty days of this 
NOTICE OF APPARENT LIABILITY, CBS Radio License, Inc. SHALL 
PAY the full amount of the proposed forfeiture or SHALL FILE 
a written statement seeking reduction or cancellation of the 
proposed forfeiture.

     13.  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.

     14.  The response, if any, must be mailed to the 
Charles W. Kelley, Chief, Investigations and Hearings 
Division, Enforcement Bureau, Federal Communications 
Commission, 445 12th Street, S.W., Room 3-B443, Washington, 
D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced 
above.  

     15.  The Commission will not consider reducing or 
canceling a forfeiture in response to a claim of inability 
to pay unless the respondent submits: (1) federal tax 
returns for the most recent three-year period; (2) financial 
statements prepared according to generally accepted 
accounting practices (``GAAP''); or (3) some other reliable 
and objective documentation that accurately reflects the 
respondent's current financial status.  Any claim of 
inability to pay must specifically identify the basis for 
the claim by reference to the financial documentation 
submitted.  

     16.  Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan 
should be sent to: Chief, Credit and Debt Management Center, 
445 12th Street, S.W., Washington, D.C. 20554.8  

     17.  IT IS FURTHER ORDERED THAT a copy of this NOTICE 
OF APPARENT LIABILITY shall be sent by Certified Mail Return 
Receipt Requested to CBS Radio License, Inc., 10220 River 
Road, Suite 305, Potomac, Maryland 20854, attention: Stephen 
A. Hildebrandt, Vice President; to H. Anthony Lehv, Leventhal, Senter & 
Lerman, P.L.L.C., 2000 K Street, N.W., Suite 600, 
Washington, D.C. 20006-1809. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
                         ATTACHMENT

Radio Station:      WLLD(FM), Holmes Beach, Florida
Date/Time Broadcast:     September 11, 1999, between 6 p.m. 
and 10 p.m.
Material Broadcast: ``The Last Damn Show'' (Rap lyrics and 
comments before a large crowd)

FV:  Female Voice
MV:  Male Voice

FV:  (Rap lyrics)  You know you mother fuckers can't beat.  
(Unintelligible)  You mother fuckers can't beat.  
(Unintelligible)  You mother fuckers can't read me.  
(Unintelligible)  You mother fuckers, you keep 
(Unintelligible)  Fuck your family.  (Unintelligible)  You 
take your shit, you take your shit.  (Unintelligible)  I'm a 
superior bitch, a serious bitch.  (Unintelligible)  A 
serious bitch.  (Unintelligible)  I won't take that shit.  
(Unintelligible)  Niggers and your mother fucking wide 
mouth.  (Unintelligible)  Damn that bitch can pump with it. 
You want to bang, nigger.  You want to bang, nigger.  You're 
off the chain, nigger.  We running game, nigger.  You want 
to bang, nigger.  It ain't no thing, nigger.  We off the 
chain, nigger.  (Unintelligible)  

MV:  We ain't going to have no more feedback problem.  Fuck 
it.  We're going to go all the way back where you all feel 
(Unintelligible) mother fucking noise.  (Unintelligible)  
God damn, where are my pussy eating niggers?  Any my niggers 
into eating pussy?  Y'all make some noise.  Hey, where are 
the girls?  If you're eating pussy, where you at?  That's 
it.  Oh, they all like it.  I ain't eating no pussy tonight.  
If you all don't like it, fuck it.  I ain't going to beg 
you.  You like it?  [Edit]  And my dog don't give a fuck and 
we'll fuck you sucking up coke, you know.  Trying to explain 
this shit away, niggers.  I don't think y'll heard me.  I 
got MTV Best New Artist Slim Shady backstage.  Slim mother 
fucking Shady backstage.  Make some noise.
_________________________

1  See, e.g., WQAM License Limited Partnership, 15 FCC Rcd 
2518, recon. denied, 15 FCC Rcd 15349 (2000).   

2  See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern 
California Broadcasting Co., 6 FCC Rcd 4387 (1991). 

3  47 U.S.C.  503(b)(2)(D).  See also The Commission's 
Forfeiture Policy Statement and Amendment of Section 1.80 of 
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC 
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303 
(1999) (``Forfeiture Guidelines''). 

4  Forfeiture Guidelines, supra note 3, 12 FCC Rcd at 17113.   

5  47 U.S.C.  503(b).

6 47 C.F.R.  0.111, 0.311, 1.80.

7  47 C.F.R.  1.80. 

8 See 47 C.F.R.  1.1914.