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

In the Matter of                   )    
                              )
Three Eagles of Columbus, Inc.          )    Control     No. 
99040101 
                              )    NAL/Acct. No. X32080013
Licensee of Station KROR(FM),      )    ID# 26649
Hastings, Nebraska                 )
                              )          

         NOTICE OF APPARENT LIABILITY FOR FORFEITURE
                                 
Adopted: April 27, 2000                      Released: April 
28, 2000 

By the Chief, Enforcement Bureau

                                                  
                       I. Introduction

     1.    In  this   Notice  of   Apparent  Liability   for 
Forfeiture, we  find Three  Eagles of Columbus,  Inc. (TEC), 
licensee  of  Station  KROR(FM),  Hastings,  NE,  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

     2.  The Commission received information indicating that 
Station KROR(FM), Hastings, NE,  may have violated 18 U.S.C. 
 1464  by broadcasting  allegedly indecent  material during 
the "Bob and Tom Show" on  February 26, 1999, between 6 a.m. 
and     9:45  a.m.  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, is 
attached.  By  letter dated  October 27, 1999,  we requested 
TEC to  comment on the complaint.  TEC filed its response on 
November 30, 1999.

                       III. Discussion

     3.  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.

     4.    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.  TEC's response to our October 27, 1999, letter of 
inquiry indicates that the ``Bob and Tom Show'' is a 
syndicated program carried by station KROR(FM).  During the 
broadcast of the program, the station has a local announcer 
on the ``board'' to allow for editing of material the 
station believes to be indecent, obscene or otherwise 
offensive.  TEC contends the cited material was not indecent 
but constituted, ``in the major, innuendo or double 
entendre'' which at the worse could be considered to be in 
bad taste.  Moreover, it contends that the broadcast was an 
isolated occurrence during a four-hour program.  We are 
unpersuaded by TEC's arguments.  The cited language dwells 
at length on sexual innuendoes and cannot be considered 
fleeting.  Moreover, the fact that this is only one segment 
of a four-hour program is not decisionally significant.  We 
find that the material relies principally on innuendo to 
convey a sexual meaning which is unmistakable and therefore, 
is actionably indecent.  Great American Television and Radio 
Company, Inc. (WFBQ-FM), 6 FCC Rcd 3692 (MMB 1990).

     7.  It  appears that the subject  excerpts are indecent 
in that  they contain language that  describes sexual and/or 
excretory activities or organs  in patently offensive terms.  
Because the material aired between  6:00 a.m. and 9:45 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  26,  1999, Station  KROR-FM, violated  18 
U.S.C.  1464 by airing indecent programming.  

     8.  Section 503(b) of the Act and Section 1.80(a) of 
the Commission's Rules 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 
Communications 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.2

     9.  The Commission's Forfeiture Policy Statement sets a 
base forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.3  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,4 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.''5  After 
reviewing all of the circumstances, we believe a $7,000 
forfeiture appears to be appropriate in this case. 
     
                    IV. Ordering Clauses

     10.   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,6 
that Three  Eagles of Columbus,  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.
 
            11.  IT IS  FURTHER ORDERED, pursuant to Section 
1.80 of the Commission's Rules, 7 that within thirty days of 
the  release of  this Notice,  TEC 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.

     12.  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  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.

     13. 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.

     14.  IT IS FURTHER ORDERED that a copy of this Notice 
shall be sent, by Certified Mail/Return Receipt Requested, 
to Three Eagles of Columbus, Inc.'s counsel, Richard F. 
Swift, Esq., Suite 350, 2175 K Street, N.W., Washington, 
D.C. 20037. 

                         FEDERAL COMMUNICATIONS COMMISSION



     
                         David H. Solomon
                         Chief, Enforcement Bureau


Attachment
                         































Radio Station:           KROR-FM, Hastings, NE
Date/Time Broadcast:     February 26, 1999, between 6 a.m. 
and 9:45 a.m.
Material Broadcast:      Bob and Tom Show
99040101

MV: Male Voice
M2: Second Male Voice
M3: Third Male Voice
FV: Female Voice
GS: Girls Singing

*   *

MV: Hi Felicia, gee, I love your dress and your hair looks 
    so shiny and manageable, are you still shampooing with 
    Head and Shoulders?
FV: Gosh Chick, I stopped using Head and Shoulders a long 
    time ago.  I mean honestly, who grows hair on their 
    shoulders anyway?  
MV: Yeah, right.  So what are you using now?
FV: Well, it's like Head and Shoulders only without all 
    those additives.  It's just called Head.  Let's tell 
    them about it girls.  
GS: If you're tired of old shampoo and (Unintelligible) and 
    feeling blue, yeah, yeah, just remember what I said, 
    yeah, yeah, you'll feel better if you get some Head.
MV: Wow.  Where can I get Head?
FV: Lots of places Chick, you can stop by my place later and 
    I'll be happy to give you some Head.  (Laughter).  In 15 
    minutes I'll have you shampooed, styled and blown dry.
MV: Gee, you don't miss a lick do you?  Head sounds great 
    but is it expensive?
FV: Not at all Chick, my brother says there are places 
    downtown where you can get Head for less than 10 
    dollars.
MV: Golly, at that price everyone should be getting Head.
M2: That's right Chick, when you say Head, you've said a 
    mouthful.  Hi, I'm Dr. Raymond Fa-lot-ee-oh from Frig 
    Them All Industries here to tell you why you should get 
    Head.  First it lubricates each limp hair follicle 
    leaving an erect glistening shaft.  Then the scalp's 
    natural oils are sucked out of the root, leaving your 
    hair soft, shiny and exhausted. Nothing does the job 
    like Head.  
M3: Great, can I get Head from my hairdresser Bruce?  
M2: Probably, but you might want to try your girlfriend 
    first.
GS: So ask and get some Head today, yeah, yeah, little 
    squirt goes a long, long way, yeah, yeah, you'll look 
    better and you'll feel terriff(?) yeah, yeah, when you 
    get Head you're a lucky stiff.
MV: Want hair with lots of volume, nothing gets it up like 
    Head.  Available at a price you won't find hard to 
    swallow.  And it's going down every day.
FV: Honey, we're out of shampoo, can you go out and get some 
    Head?
MV: What did you say?
FV: I said, I want you to go out and get Head.
MV: Oh thank you sweet Jesus.  I'm going downtown.
M2: And Head makes a great holiday gift.  Last Christmas my 
    wife gave me some Head.  Then I gave her a pearl 
    necklace.  I've never seen her so choked up.  
M3: My girlfriend used to give me Head, then we got married.  
    Now I'm lucky if I get Jergen's lotion and a National 
    Geographic.  (Laughter).

GS: Once you start you won't want to stop, Head feels so 
    good you might blow your top, give Head in the shower 
    you'll want to come, give Head.  Mm mm mm mm.  If you're 
    tired of your old shampoo, yeah, yeah, frustrated and 
    feeling blue, yeah, yeah, just remember what I said, 
    yeah, yeah, you'll feel better if you get some Head, 
    you'll feel better if you get some Head. 
MV: Oh yeah, oh, oh.  Head Shampoo, come on give it a shot.
M2: My hair looks great. (Laughter).  Use a nap.
MV: A little Head shampoo for you.
M2: By request here on the Bob and Tom program.

*   * 






                    

























_________________________

1 18 U.S.C.  1464, 47 U.S.C.  503(b)(1)(D).
2See Southern California Broadcasting Co., FCC Rcd 4387 
(1991). 

3The 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).
 
4 12 Fcc Rcd . at 17110. 

547 U.S.C.  503(b)(2)(D).  

647 C.F.R.  0.111, 0.311 and 1.80.
 
747 C.F.R.  101.53.