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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
)
AMFM RADIO LICENSES, LLC ) File Nos. EB-02-IH-0472
) EB-02-IH-
) 0494
Licensee of Station WWDC-FM ) NAL/Acct. No.200432080003
Washington, DC ) FRN 0003720935
) Facility ID No. 8682
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 30, 2003 Released: October 2,
2003
By the Commission: Commissioner Martin concurring and issuing a
separate statement; Commissioner Adelstein issuing a separate
statement; Commissioner Copps dissenting and issuing a separate
statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), issued pursuant to section 503 of the Communications
Act of 1934, as amended (the ``Act'') and section 1.80 of the
Commission's rules,1 we grant complaints from Reverend Michael G.
Taylor and from Catherine P. Henry2 and find that AMFM Radio
Licenses, LLC (``AMFM''), licensee of Station WWDC-FM,
Washington, DC, apparently violated 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, by willfully and repeatedly airing indecent
material over the station during its May 7 and 8, 2002,
broadcasts of the ``Elliott in the Morning'' program. Based upon
our review of the facts and circumstances in this case, we
conclude that AMFM is apparently liable for a monetary forfeiture
in the amount of Fifty-Five Thousand Dollars ($55,000.00).
II. BACKGROUND
2. The Commission received complaints that Station WWDC-FM
broadcast indecent material on May 7 and 8, 2002, at or about
8:00 a.m. during the ``Elliot in the Morning'' program. The
complaints seek Commission redress for the broadcasts' alleged
use of ``crude language, explicit sexual references'' and
``blatant attempt to mock'' the Bishop Denis J. O'Connell High
School (``Bishop O'Connell High School'') community, generally,
and the Bishop O'Connell High School students, administration and
principal, particularly.3 In support of his complaint, Reverend
Taylor submitted an audio tape of both broadcasts.4
3. The portion of the May 7 broadcast in question involved
a station-sponsored promotion, during which two female students
called in for the opportunity to audition to dance in a cage at
an upcoming rock music concert.5 At the prompting of the program
hosts, the two callers identified themselves as students at
Bishop O'Connell High School, described their physical attributes
in terms of ``both [being] pretty hot,''6 provided their bra
sizes,7 and otherwise engaged in sexual banter with the program
hosts.8 The program hosts continued to probe by asking the two
female students leading questions, such as whether they were
``kind of like an exhibitionist,''9 ``flash[ed] from time to
time,'' did occasional ``little show[s] at parties'' together
with their ``boobies out,''10 ``at school lined like two or three
guys up against the lockers,''11 and had sexual encounters in the
school's stairwells and closets.12 The program hosts also asked
the two female students whether they had ``ever hooked up'' or
``made out with a teacher.''13 During their interview with the
two female students, the program hosts repeatedly returned to the
subject of their ``lining up'' boys ``against their lockers,''14
and interjected loud sucking and slurping sounds.15
4. The portion of the May 8 broadcast in question related
to the two female students' suspension from Bishop O'Connell High
School, the consequence of their interview during the May 7
broadcast. The program hosts continued their repeated references
to oral sex during this broadcast, commencing the segment by
reading from the Bishop O'Connell High School's website's stated
school mission of ``pursuit of excellence of the whole person''
and interjecting, ``and then you go down.''16 Noting the
website's stated objective of ``a healthy lifestyle'' for the
school's students, speaking as if his mouth was full and with
loud sucking and slurping sounds in the background, one program
host made reference to ``healthful protein.''17 The program hosts
also criticized the girls' suspension from school by remarking
that ``if they're blowing guys at the school, that's not their
fault . . . the school needs to do a better job policing,'' and
``some of the priests would ask if they had brothers.''18
Referring to the high school administration's apparent concern
about the school's reputation, the program hosts further stated
that ``people spend a lot of money to get that [Bishop O'Connell
High School's] image,'' and ``people spend a lot of money to go
to college [and] it ain't like people ain't screwing there.''19
The program hosts also took calls from several other Bishop
O'Connell High School students, asking one male student if he
``was one of the guys that [the two female callers] blew in the
hallways,''20 and another if he ``ever had [his] back up against
a locker.''21 Finally, the program hosts asked one student
caller if, after the May 7 broadcast, the Bishop O'Connell High
School principal ``actually g[o]t on the P.A. system and talk[ed]
about how they [the two female caller students] were giving
blowjobs in the hallway,'' speculated that the principal probably
had ``never gotten a blowjob from his wife,'' and said that they
``hear [the principal] told [one of the female caller students]
she's gotta give up semen for Lent.'' 22
5. After reviewing the complaints and the audio tape, the
staff issued a letter of inquiry to AMFM, with which we enclosed
a copy of the tape.23 Clear Channel Communications, Inc.
(``Clear Channel''), corporate parent of AMFM, responded to the
letter of inquiry.24 Clear Channel did not dispute that WWDC-FM
had broadcast the material contained in the tape, at the dates
and times set forth in the complaints, but claimed that, because
the tape appeared to contain some omissions, it was not an
accurate record of the entire broadcasts. Clear Channel also
asserted that the material is not actionably indecent under the
Commission's established policies. In response to a further
letter of inquiry,25 Clear Channel advised that it aired the
material in question only on WWDC-FM.26
III. DISCUSSION
6. The Federal Communications Commission is authorized to
license radio and television broadcast stations and is
responsible for enforcing the Commission's rules and applicable
statutory provisions concerning the operation of those stations.
The Commission's role in overseeing program content is very
limited. The First Amendment to the United States Constitution
and section 326 of the Act prohibit the Commission from
censoring program material and from interfering with
broadcasters' freedom of expression.27 The Commission does,
however, have the authority to enforce statutory and regulatory
provisions restricting indecency. Title 18 of the United States
Code, Section 1464 prohibits the utterance of ``any obscene,
indecent or profane language by means of radio communication.''28
In addition, section 73.3999 of the Commission's rules provides
that radio and television stations shall not broadcast indecent
material during the period 6 a.m. through 10 p.m.
7. Under section 503(b)(1) of the Act, any person who is
determined by the Commission to have willfully or repeatedly
failed to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be liable to
the United States for a monetary forfeiture penalty.29 In order
to impose such a forfeiture penalty, the Commission must issue a
notice of apparent liability, the notice must be received, and
the person against whom the notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty
should be imposed.30 The Commission will then issue a forfeiture
if it finds by a preponderance of the evidence that the person
has violated the Act or a Commission rule.31 As we set forth in
greater detail below, we conclude under this standard that AMFM
is apparently liable for a forfeiture for its apparent willful
and repeated violations of 18 U.S.C. § 1464 and section 73.3999
of the Commission's rules.
A. Indecency Analysis
8. Any consideration of government action against
allegedly indecent programming must take into account the fact
that such speech is protected under the First Amendment to the
United States Constitution. The federal courts consistently have
upheld Congress's authority to regulate the broadcast of indecent
speech, as well the Commission's interpretation and
implementation of the governing statute.32 Nevertheless, the
First Amendment is a critical constitutional limitation that
demands that, in indecency determinations, we proceed cautiously
and with appropriate restraint.33
9. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured by
contemporary community standards for the broadcast medium.34
Indecency findings involve at least two fundamental
determinations. First, the material alleged to be
indecent must fall within the subject matter scope of
our indecency definition¾that is, the material must
describe or depict sexual or excretory organs or
activities. . . . Second, the broadcast must be
patently offensive as measured by contemporary
community standards for the broadcast medium.35
As an initial matter, Clear Channel does not dispute that it
aired material describing or depicting sexual activities.
Although, in its response to the staff's inquiry letter, Clear
Channel maintains that, because the tape ``has obviously been
heavily edited,'' it ``is not a complete and accurate record of
the entire broadcast on the dates in question,'' Clear Channel
does not dispute that it did, in fact, broadcast the material on
the tape, conceding that ``the tape contains material broadcast
by WWDC-FM, on or about May 7 or 8, 2002.''36 The principal focus
of the program segments was the sexual practices of the two May 7
student callers and of other students at Bishop O'Connell High
School. That material, therefore, warrants further scrutiny to
determine whether or not it was patently offensive as measured by
contemporary community standards for the broadcast medium.37
10. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''38 Three principal factors are
significant to this contextual analysis: (1) the explicitness or
graphic nature of the description; (2) whether the material
dwells on or repeats at length descriptions of sexual or
excretory organs or activities; and (3) whether the material
appears to pander or is used to titillate or shock.39 In
examining these three factors, we must weigh and balance them to
determine whether the broadcast material is patently offensive
because ``[e]ach indecency case presents its own particular mix
of these, and possibly, other factors.''40 In particular cases,
one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and
consequently indecent,41 or, alternatively, removing the
broadcast material from the realm of indecency.42 We turn now
to our analysis of the three principal factors in our decision.
11. First, the comments made by the program hosts during
the broadcasts contained graphic and explicit references to
sexual activities, including repeated references to ``blow
jobs.''43 In addition to these references and consistent with
that tone, the hosts both simulated the act of oral sex, by
repeatedly making loud sucking and slurping sounds, and relied
upon colloquial terms, by repeatedly referring to locker line-ups
and interjecting remarks such as ``giv[ing] up semen for Lent,''
``go[ing] down,'' and taking in ``healthful protein.''44 To the
extent that the sound effects or colloquial terms that the
program hosts used to describe sexual activities could be
described as innuendo rather than as direct references, they are
nonetheless sufficient to render the material actionably indecent
because the sexual import of those sounds and terms was
``unmistakable.''45 Given the explicit references and the
graphic manner in which the broadcasts described the activities
of the Bishop O'Connell High School students, there is no non-
sexual meaning that a listener could possibly have attributed to
these terms.46 Therefore, we find that the broadcasts at issue
described sexual activities through the use of direct references,
simulation, and/or innuendo that were sufficiently explicit or
graphic to be deemed patently offensive as measured by
contemporary community standards for the broadcast medium.
12. Second, the program hosts, in their dialogue between
each other and with callers, continuously focused on the sexual
activities of the two initial female callers and other students
at Bishop O'Connell High School. The sexual discussion and
references were not fleeting or isolated. Rather, discussions
about and references to sexual activity pervaded, and were the
subject of, both the May 7 and 8 broadcasts. Thus, the sexual
discussions and references were more than sufficiently dwelled
upon and repeated to constitute patently offensive material as
measured by contemporary standards.
13. Finally, and perhaps most significantly, several
characteristics of the manner in which the station presented this
material establish that AMFM intended that both broadcasts pander
and shock listeners. As an initial matter, the program hosts'
continued and repeated references to the Bishop O'Connell High
School students' sexual activities and comments about the
school's administrators and their sexual practices clearly evince
such an intent with regard to the listening audience. During the
May 7 broadcast, the program hosts geared their questions to the
two female student callers to elicit information from them
regarding their sexual practices, focusing on the topic of oral
sex in the hallways of the school.47 On May 8, they turned their
attention to seeking similar information from their other student
callers because the girls, in response to the program hosts'
encouragement, claimed they had performed oral sex on other
students at the school. The program hosts were not chastened by
the notoriety with young listeners that the May 7 broadcast
engendered; rather, they continued their pandering in interviews
with other student callers and continued their efforts to shock
listeners by focusing on sexual activities in a school setting.
Both broadcasts occurred at or about 8 a.m., when there was a
reasonable risk that children would be in the audience, on their
way to or getting ready for school. Indeed, in light of the
number of student callers to the programs, that risk became
reality. The WWDC-FM broadcasts targeted the very segment of the
population - - children, including teenagers under the age of 18
-- whom the government has a recognized and compelling interest
to shield from indecent material.48 By goading these teenagers
to discuss their sexual activities in a titillating and offensive
manner, the program hosts set out to pander and to shock
listeners. In this regard, the program hosts' use of loud
sucking and slurping sounds when referring to oral sex
demonstrates that, in context, this program was not simply a non-
pandering discussion of contemporary high school sexual behavior.
For these reasons, we find that the May 7 and 8 broadcasts were
patently offensive as measured by contemporary community
standards for the broadcast medium.
14. Clear Channel's claims notwithstanding, the material
presented in the May 7 and 8 broadcasts is similar to other
material concerning sexual activities involving teenagers that
the Bureau has found to be apparently indecent.49
In sum, by broadcasting this material on May 7 and 8, 2002,
within the 6 a.m. to 10 p.m. time period relevant to an
indecency determination under section 73.3999 of the
Commission's rules, AMFM apparently violated 18 U.S.C. § 1464
and the Commission's rules against broadcast indecency.
B. Proposed Forfeiture
50``''51Based upon our review of the record in this case, we
conclude that AMFM is apparently liable for forfeitures for two
willful and repeated violations of our rules, one for each of the
broadcasts at issue here. The Commission's Forfeiture Policy
Statement sets a base forfeiture amount of $7,000.00 for
transmission of indecent materials.52 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.''53 In this case,
taking all of these factors into consideration, we find that AMFM
is apparently liable for a forfeiture of $55,000.00, reflecting
the proposed imposition of the maximum forfeiture amount for the
broadcast of apparently indecent material on two separate
occasions (2 x $27,500.00). Based upon our review of the entire
record, we believe that this upward adjustment to the statutory
maximum is warranted. The continued and repeated references to
sexual activities of the Bishop O'Connell High School students
and administrators were calculated to engender notoriety and were
targeted toward children, including teenagers under the age of
18. Moreover, the material broadcast on two consecutive days was
extensive. Accordingly, we believe the egregious nature of the
violations and the degree of culpability justifies an increase to
the full amount. Additionally, there is a recent history of
indecent broadcasts on stations controlled by Clear Channel
Communications, Inc., AMFM's corporate parent, which justifies
imposition of the maximum forfeiture amount.54 We reiterate our
recent statement that multiple serious violations of our
indecency rule by broadcasters may well lead to license
revocation proceedings.55
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, and section 1.80
of the Commission's rules, that AMFM Radio Licenses, LLC is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
amount of Fifty-Five Thousand Dollars ($55,000.00) for willfully
and repeatedly violating 18 U.S.C. § 1464 and 73.3999 of the
Commission's rules.
16. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty (30) days of this Notice,
AMFM Radio Licenses, LLC SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
17. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (FRN) referenced above and also must
note the NAL/Acct. Number referenced above.
18. The response, if any, must be mailed to Maureen F. Del
Duca, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, SW,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. Number referenced above.
19. 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.
20. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, SW, Washington, DC 20554.56
21. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If AMFM qualifies as a small
entity and if it wishes to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in its response to the NAL or in a
separate filing to be sent to the Investigations and Hearings
Division. Its certification should indicate whether AMFM,
including its parent entity and its subsidiaries, meets one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'') set
forth in Attachment B of this Notice of Apparent Liability. This
information will be used for tracking purposes only. AMFM's
response or failure to respond to this question will have no
effect on its rights and responsibilities pursuant to section
503(b) of the Communications Act. If AMFM has questions
regarding any of the information contained in Attachment B, it
should contact OCBO at (202) 418-0990.
22. Accordingly, IT IS ORDERED, that the complaints filed
against Station WWDC-FM's broadcast of the ``Elliott in the
Morning'' program on May 7 and 8, 2002, ARE GRANTED, and the
complaint proceeding IS HEREBY TERMINATED.57
23. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability For Forfeiture shall be sent, by Certified
Mail Return Receipt Requested, to AMFM Radio Licenses, LLC,
Kenneth E. Wyker, Esq., Senior Vice President and General
Counsel, Clear Channel Communications, Inc., 200 E. Basse Road,
San Antonio, Texas 78209; to counsel for AMFM, Evan S. Henschel,
Esq., Wiley, Rein & Fielding, LLP, 1776 K Street, NW, Washington,
D.C. 20006; to Reverend Michael G. Taylor; and to Catherine P.
Henry.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
Program Transcript
Radio Station: WWDC-FM, Washington, DC
Dates/Time of Broadcasts: May 7, 2002 and May 8, 2002,
between 6 a.m. and 10 p.m.
Material Broadcast: The Elliot in the Morning Show
May 7, 2002
E: Elliot
D: Diane
2M: Dan
FC1: First Female Student Caller
FC2: Second Female Student Caller
F: Flounder
E: Hi. DC101.
FC1: Hi.
E: Who is this?
FC1: It's [first female student caller].
E: Hi [first female student caller]. How are you?
FC1: I'm good. How are you?
E: I'm doing well. You sound very chipper today, [first female
student caller].
FC1: I'm in a good mood.
E: Yeah, how old are you?
FC1: I'm 18.
E: Mmm. I like that. I think you're our first 18 year-old.
FC1: [Giggling] I have been listening all morning, so.
D: You'd be the youngest.
E: You get the advantage going in.
FC1: Yes, I'm the youngest.
E: Right, and ah, where do you live [first female student
caller]?
FC1: Alexandria.
E: Are you in school?
FC1: Ah, I should be in school right now, but I've been waiting
to talk to you guys.
E: High school?
FC1: Yeah.
E: Oh, God bless.
D: Where?
FC1: Ah, Bishop O'Connell.
E: ExcelLent.
D: Oh, private school girl.
E: Any prom dates? [Laughter from E]
FC1: Ah, no [unintelligible] prom already.
E: As if the Catholic Church doesn't have enough problems right
now.
FC1: That's true.
E: Alright. So, [first female student caller] are you a
senior?
FC1: Yeah.
E: Ah, do ah do ah everybody there at school find uh you
irresistibly hot?
FC1: Ah, I'd like to say so.
E: Yeah. You a popular girl at school?
FC1: Uh, decently popular.
2M: Now are you going to Ivy League next year?
FC1: No.
E: [Laughter from 2M] Who cares? Are you kind of like an
exhibitionist?
FC1: Yeah. Some people say so.
E: And you want to flash from time to time?
FC1: I've been known to do that.
E: Yes, of course you have. I gotta ask you what size bra?
FC1: Ummm, 34-C.
E: Really?
FC1: Yeah.
E: For a senior, that's excelLent. [Laughter from FC1]
D: For a senior.
E: That's good. Ahhh alright.
2M: How well do you know the football team? [Laughter from D]
FC1: Pretty well.
2M: Awesome.
E: You've never lined like four or five guys up against lockers
have you?
FC1: Not four or five.
E: One or two?
FC1: Two or three. [Laughter from E, D and 2M]
E: Really?
D: I think Dan just won the lottery. [Laughter from E, D and
2M]
E: So Dan's quitting his job. [Laughter from E, D and 2M]
SM: That's the Powerball right there.
E: So wait a minute. So at school you've lined like two or
three guys up against the lockers and like ahhh. [Loud sucking
sounds from E]
FC1: [Laughter ] Ahhh. Like yeah.
E: Really?
FC1: Yeah. I'm here with my friend [second female student
caller]. She wants to dance too.
E: I'll get to [second female student caller] in a moment.
[Laughter from E, D and 2M] Really.
FC1: Yeah. We want to dance with you.
E: Oh, uh not a problem honey.
[Break in the audio-tape]
FC1: Um, probably about 8 or 9.
E: Hm. Hm. Hm. Hm. Alright. And you can be here on
Thursday. Well, what about school on Thursday?
D: Yeah.
FC1: Ah, well. I don't go to school quite as often as I should.
[Laughter from E, D and 2M]
D: Quite as often as you should.
E: Hey, do you know my next door neighbor? [Laughter from E, D
and 2M]
D: Well, [first female student caller] you're already accepted
to the college of your choice right?
FC1: Yes I am. [Laughter from E]
D: Where you gonna go?
FC1: I'm gonna go to VCU.
D: VCU.
E: Very good.
2M: So that's okay, but not the Ivy League question.
E: Yeah. No, VCU's fine. No, that's good.
D: She's an artist.
E: You should check out Radford. [Laughter from E]
2M: She could get all A's there. [Laughter from E]
E: Alright. Very good, [first female student caller]. Yes,
you hold on one second and Flounder's gonna get some
information from you, okay?
FC1: Okay, no problem.
E: Alright. Very good. Hold on one second.
2M: What about her friend? Did you talk to her friend?
D: [Second female student caller].
E: Oh, you know what put [second female student caller] on real
quick.
FC1: Okay, here. Just a sec.
FC2: Hello
E: Hi [second female student caller].
FC2: Hi. How are you?
E: I'm well. Thank you. [Second female student caller] are
you also 18?
FC2: Yes, I am.
E: And you also go to Bishop O'Connell?
FC2: Yes, I do.
E: Uh-huh. Let me ask you, you better looking than [first
female student caller]?
FC2: Um, I don't know. I think we're both pretty hot.
E: Right.
E: Have you two ever hooked up?
FC2: No, but we've been known to do our little show at parties
and what not.
E: Uh, what do you mean your little show?
FC2: Like we dance together, you know?
D: Yeah.
2M: Hmmm.
E: Like with your boobies out?
FC2: Ah, it all depends on who's there. I mean I'm not gonna
just. Yeah.
D: Right.
E: Well, I mean like on Thursday like maybe I'll have you two
dance together?
FC2: Yes, of course.
E: Okay. ExcelLent. [Laughter from D] Are you also a 34-C?
FC2: I'm actually a 36-D. Full D.
2M: Full D.
FC2: And my nickname with all my friends is ``J-Lo'' so I got the
booty to go with it.
E: Oh, you got a little butt back there.
FC2: Yeah.
E: Oh, that's fine. 36-D. J-Lo. [Laughter from E, D and 2M].
Thank God for the hormones in milk. [Laughter from E, D and
2M] Have you ever done the uh locker lineup at school?
FC2: Um, a little bit of that. I'm more like in the secluded
area.
E: Stairwell.
FC2: Yes.
E: Really.
D: Janitor's closet.
E: More than with the janitor. [Laughter from D] [Knocking
sound]
2M: Awesome.
E: [Impersonating a janitor with a Mexican accent] Need to be
coming on in please. Wet spill in my pants please.
[Laughter from E, D and 2M].
D: Oh God. [Laughter from D]
E: [Laughter from E] Have you ever made out with a teacher?
FC2: No. [Laughter]
E: No.
2M: Naw, please.
E: Um, more than eight or nine times in school?
FC2: Ah, no I wouldn't go that far.
2M: No.
E: You don't think badly of [first female student caller]
because she has, do you?
FC2: No, I love [first female student caller].
E: In God's way.
D: Uh-huh.
FC2: Truly in God's way.
E: Uh-hm. [Laughter from FC2] Alright. Very good. And um
missing school on Thursday would be nothing new for you.
FC2: Nothing new.
E: Alright, very good. Hold on one second and ah Flounder will
get both of your information. We'll see you on Thursday.
FC2: Okay. Thank you.
E: Alright, very good.
D: Flounder will get your information. Hopefully we'll see it.
E: Yes.
2M: Man, we're looking for Chinese finger ties. [Laughter from
E, D and 2M]
E: Alright, now let me say this. [Laughter from E, D and 2M]
Don't send me your goddamn emails about being angry that we're
doing these two ah high school kids.
D: They're 18.
E: They're 18 years-old. This is their own deal. Alright, so
save the e-mails.
D: They're not going to school anyway.
E: Save the e-mails.
D: [Laughter from E, D and 2M] It's not like they're studying
for the SATs.
E: Save the you're corrupting the youth of America. Please.
Nobody. I didn't hold a gun to anybody's head to line up nine
guys against a locker. [Laughter from 2M] Alright. Diane, we
didn't do anything wrong.
D: [Laughter from D] Hey, she was free with the information.
2M: That private school's gonna love you though.
E: That's Bishop O'Connell.
2M: Yeah, they're very proud today.
E: They should be.
D: Hey, you pay money to go to that school. [Laughter from D
and 2M]
E: You know what, at least it's not one of the priests.
2M: Yes.
E: Save the hate e-mail. Okay. We did nothing wrong, right
Flounder?
F: I agree. [Laughter from E, D and 2M]
2M: We're doin' that school a service. You know how many kids
they're gonna' get now? They're thinking about stalking Bishop
O'Connell.
E: Right now everybody at [Unintelligible] council is going,
``Goddamn it [Unintelligible] not at our school.'' [Laughter
from E, D and 2M] Alright, very good, alright. So good, I
feel like we're starting to put together a very nice list.
We'll either revisit that again before we get off the air
today, maybe after school starts, [Laughter from 2M] or we
will get some more contestants tomorrow. So, Thursday
morning we'll have everybody in here dancing and uh four will be
selected to dance for Kid Rock on Saturday night at the Patriot
Center. I think I speak for all of us when I can't thank Kid
Rock enough for choosing us to do this promotion. [Laughter
from 2M] [Unintelligible].
[Break in the audio-tape]
May 8, 2002
E: Elliot
D: Diane
BD: Buddy
MC: Male Student Caller
MC2: Second Male Student Caller
MC3: Third Male Student Caller
MC4: Fourth Male Student Caller
MC5: Fifth Male Student Caller
FC3: Third Female Student Caller
E: Before we get into the news, Diane.
D: Yeah.
E: We had a little interest in Bishop O'Connell High School.
[Laughter from E]
D: Yeah. I went to the website. [Laughter from E] I was
looking at the mission statement. [Laughter from E] ``Our
mission is to provide the students an education rooted in the
life of Christ [unintelligible] pursuit of excellence of the
whole person.'' And then you go down. [Laughter from E]
The desired learning results. [Laughter from E] Kinda' take on a
new meaning. [Laughter from E and 2M] ``Students practice a
moral code based on gospel values as found in our Catholic
faith and worship.'' [Laughter from E and 2M] ``Express
Christian values through participation in community service
projects.''
E: Take him and drink for him. [Laughter from E]
D: ``Develop creative and critical thinking skills.'' [Laughter
from D] ``Use those skills in successfully solving
problems.''
E: There you go, [first female student caller] and [second
female student caller].
D: Mmm [Impersonating a young girl's voice] What should I do?
[Laughter from E] ``Learning to work with others
cooperatively.''
E: [Spoken as if E's mouth was full] May peace be with you and
also with you.
D: ``Develop and maintain''
E: [Loud sucking sounds from E]
D: ``Develop and maintain positive self worth through a healthy
lifestyle.''
E: [Spoken as if E's mouth was full] This healthful
[unintelligible] of protein. [Loud sucking sounds from
E][Laughter from E, D and 2M] [Spoken as if E's mouth was full]
Hey, what do you think will be going on at Bishop O'Connell
High School today? [Laughter from E, D and 2M]
D: Talk in the office.
E: More guys have signed up for this school in the last half
hour. [Laughter from E and 2M] We done a service. [Laughter
from E and 2M] Alright, very good. So Thursday morning.
D: ``Our student body of 1,470 reflects the diversity of our
community and neighborhoods.''
E: [Spoken as if E's mouth was full] I'm part of the community.
[Loud sucking sounds from E] [Unintelligible] Oh no.
[Laughter from 2M and D] They'll be in here. I love that. What
are you kidding me?
D: They're not going to be at school that day. [Laughter from E
and 2M]
E: Alright. 8:15, dear God. Ah, what have we got going on
here? We're busy as hell. We got some [unintelligible]
tickets to give away. Oh
[Break in the audio-tape]
E: Let me get Buddy on the phone. Buddy.
BD: Hey.
E: How are you, sir?
BD: Good. How are?
E: Good, I I understand we caught you shaving.
BD: Yeah, I'm about half way done. [Laughter from BD]
E: I say just leave it.
BD: Leave half of it?
E: Yeah, just leave half of it. Ah, yesterday while we were
going through our qualifying I guess sometime around 7:45 we
heard from [first female student caller] and [second female
student caller]. [First female student caller] and [second
female student caller], two 18 year-olds, they just so
happen to go to Bishop O'Connell High School. And what I
thought was a very nice conversation with them yesterday.
They informed as to some things they do at school. [Laughter
from BD] But they're 18 years-old. They're adults.
They're allowed to do what they want. And then um I guess
we heard very early this morning that both [second female
student caller] and [first female student caller] had been
suspended from school. Now, Buddy, did the, I know,
principal call the station, true or false?
BD: That is, that is true.
E: Right. Did you ah speak to um Bishop O'Connell? [Laughter
from BD and 2M]
BD: No. The Bishop did not speak. We ah traded messages. But
I think the thing that he was concerned about was the story
that he got was that you coerced or badgered or otherwise
convinced these people or these two young ladies to say things
that weren't true.
E: Now, correct me if I'm wrong. I don't feel like I badgered
them in any way at all.
D: You asked them a question and they answered.
E: Yeah.
BD: Well, like I said the principal apparently couldn't have
been nicer and ah was just following what what he was told,
so.
E: Right. Now, see we heard this morning I guess that ah
Bishop O'Connell's daughter, I don't know the guy's name.
What's his name?
BD: Uh, you know I don't remember. It's on my desk.
E: You lying sack. [Laughter from BD] No, come on. What's
his name?
BD: I honestly don't remember.
E: Alright. Hey, Mack, see if you could find me someone from
Bishop O'Connell real quick. Line 2? Fine, perfect. Tell
him I'll be there in a second. So anyway, what we did here
was ah the principal called [first female student caller]
and [second female student caller] in to their office, into
his office. I'm assuming it's a man.
BD: Right.
E: And um I guess had a conversation with them and then
suspended them and then got on the PA system at the school
and talked about what a bunch of heathens we are. I may be
paraphrasing. [Laughter from BD]
BD: I didn't hear that part.
E: Yeah, so apparently he uh he does not like your radio
station, Buddy Riser.
BD: Wow.
E: Yeah.
BD: Well yeah this is before I had a chance to really discuss it
with him.
E: This is the work of the devil right here. [Laughter from
BD] So you didn't you didn't
touch base with him?
BD: No, we we traded phone messages yesterday so.
E: What was his message to you?
BD: He he was he couldn't have been nicer. I mean basically
he's just, he was just trying to figure out exactly from our
side. I mean obviously he had heard only their side of the
story.
E: Right. Why did he suspend them though? That doesn't seem
right to me.
BD: Now that I don't know. I I didn't know that he had done
that.
E: Yeah. See that doesn't seem right. That that part kinda
pisses me off.
BD: Yeah.
E: I'm thinking we have a Support [second female student
caller] and [first female student caller] Concert at the
school with [unintelligible]. [Laughter from E, D and 2M]
But I don't understand why they got suspended. Hey listen
if they're blowing guys at the school, that's not their
fault, that's the school. The school needs to do a better
job policing.
D: They should get counseling not suspension.
E: That's right. Jesus wouldn't just toss them aside.
[Laughter from BD] Jesus would welcome them in.
2M: Yes, he would.
E: Some of the priests at the school would ask if they had
brothers. [Laughter from BD]
BD: Have we talked to the girls today?
E: No. I have a feeling they won't be calling today. No,
Jesus took away their phone privileges. [Laughter from BD]
Alright, Buddy, alright. I was wondering if you got to touch
base with them.
BD: No.
E: With the principal or whatever his face is.
BD: No.
E: Alright, very good. Thank you very much, Buddy. See you in
a bit. Finish cleaning up over there.
E: Hi. Who's this? Hello?
MC: Yeah.
E: Yeah, who's this?
MC: Uh, I won't give my name out.
E: Yeah, I don't blame you. You know if I went to Bishop
O'Connell I wouldn't give my name either. That's how you people
get in trouble.
MC: Ah yeah definitely.
E: Alright. So what happened at school yesterday?
MC: Uh well um. First of all, at around 8:10 I was uh driving
down with some friends before school and uh we were
listening to your station and uh we hear these two girls call up.
They go off about some stuff and uh. First of all, we want to
find out who it is and uh. I wouldn't let you put these
girls on the stage with uh bikinis on.
E: Wait, say again. You what?
MC: I wouldn't let you put these girls on stage with bikinis,
first of all.
E: I did get some e-mails saying that they were pretty hot.
MC: Ah, really? [Laughter from 2M]
E: Well, I can tell some people have different taste. Anyway,
go ahead.
MC: And uh we get to school and there's a big ordeal about it.
And uh I guess they just suspended hard core because of it.
[Break in the audio-tape]
E: Yeah. But you're kinda' out of loop.
[Break in the audio-tape]
E: Hi. DC101.
MC2: Hey, what's up?
E: Hey, who's this?
MC2: This is [second male student caller].
E: [Second male student caller]. You go to Bishop O'Connell?
MC2: Yeah.
E: Yeah. So now tell me what happened yesterday?
MC2: All I heard was that these girls called in and our principal
came in on like 8th period and he was basically told us
everything that happened.
E: Oh really. That's very interesting to me. What did he say
over the PA system that happened?
MC2: I don't know. I can't remember exactly what he said.
E: Right. Well, first of all, how did they break in with that
announcement? What's the principal's name there?
MC2: Um, Burch.
E: Principal Burch.
MC2: Yeah.
E: Alright so Principal Burch gets on the uh PA and says, you
know, excuse me Bishop O'Connell students I have an
announcement to make?
MC2: Yeah. He just wanted to clarify if there were like any
rumors going on like really what happened.
E: Oh, so what did he say really happened?
MC2: Nah, He uh. Once again I don't want to say exactly what he
said.
E: No, go ahead. [Laughter from MC2] No you can say what
exactly he said. [Laughter from MC2] No, because honestly
I want to know what he said.
MC2: Well, honestly, I don't really remember. But basically he
just said that two girls called in and said, uh, I don't know.
Honest?
E: But what did he say they did?
MC2: Um. Yeah, he said uh that. I don't know. [Laughter]
2M: Come on now, dude.
E: Come on dude.
D: [Second male student caller]'s worried that he's gonna get
suspended.
MC2: I'm definitely am. But it's not a biggy. [Laughter]
E: Who's your buddy in the car?
MC2: Ah, [third male student caller].
E: Yeah, put [third male student caller] on.
MC2: Ah, here's [third male student caller].
E: Yeah. [Third male student caller]'s got a set of balls on
him. [Laughter from 2M]
2M: Yeah, here take [third male student caller].
MC3: Hey, what's up fellas?
E: Hey [third male student caller]. Now you go to school there
also?
MC3: Yes, I do.
E: Alright. What did, uh, what did Burch say?
MC3: Well, he uh just said some of the stuff that the girls said
on your show.
E: Really? So did Principal Burch actually get on the PA
system and talk about how they were giving blowjobs in the
hallway?
MC3: Well, let me, hold on for a second. Naw, he didn't say
that. He was very nice about it, you know. He's. In a
Catholic school so you gotta be nice about it.
D: Right.
E: Right. So but now, so he ended up. Why did, why did, they
get suspended? That's what I don't understand.
MC3: You gotta have the mindset that this is a Catholic school
and, you know, anything out of the school really should have
some moral binding.
E: Yeah.
MC3: He's just worried about the school's reputation.
2M: The image.
MC3: Yeah.
2M: I mean people spend a lot of money to get that image.
D: Yeah, they do.
E: Yeah, but I mean, okay.
2M: Well, that's, I guess, the basis.
E: People spend a lot of money to go to college. It ain't like
people ain't screwing there.
MC3: Yeah, that's true. But, he wants to have like, you know,
the mindset of him being a good, you know, person that gives
these children moral teachings, that kind of stuff.
E: Is Burch married?
MC3: Yes.
E: Anybody willing to bet he's never gotten a blowjob from his
wife?
MC3: [Laughter] Ah, I don't want to think about it. [Laughter
from E] He's a very nice guy. I like him a lot. He's
really nice.
D: Of course you do. [Laughter from 2M]
E: Very good, [third male student caller]. [Laughter from D]
You're very smart kid. [Laughter from D] I like you.
MC3: ExcelLent. ExcelLent.
2M: Do you know his daughter?
MC3: I, uh.
E: Yeah. His daughter is apparently the one that called, that
little rat.
D: Is she older?
MC3: I don't. Burch's?
E: Yeah, Burch's daughter. Does she go to school there?
MC3: No, no.
E: Oh, so she's already out.
MC3: I've I've never met her.
E: Right. But Burch is a pretty cool guy who obviously has a
little issue with us.
MC3: Yeah. Well he just wants to look out for, you know, his
students.
E: Did he mention us by name?
MC3: No.
E: What do you mean no? What did he say like ``a local radio
station?''
MC3: He said ``DC101,'' but he didn't
E: ExcelLent.
2M: Oh, we got press. [Clapping]
E: That's good, that's good. At least let `em let `em know
what they should be listening to Burch. [Laughter from D]
MC3: ExcelLent. ExcelLent.
E: Alright [third male student caller].
D: [Third male student caller]'s very nervous right now.
E: No, [third male student caller] you're fine. You're fine.
MC4: Hi Diane.
D: Hi.
E: [Unintelligible] [Laughter from D and MC3] Hey, [third male
student caller], let me ask you, you weren't one of the
guys that [first female student caller] and [second female
student caller] blew in the hallways, were you?
MC3: Ah naw, naw, naw
E: No naw naw naw.
MC3: I don't think I'd let them.
E: Okay, alright, very good, very good. You'd give it a couple
of years though.
MC3: I just want to say Hi to Diane.
D: Thanks, [third male student caller]. Have a nice day at
school.
MC3, MC4: Bye, see ya later, bye. [Unintelligible] [Laughter
from MC3, MC4, E, D and 2M]
E: We got a phone number for, ah, the school?
D: The main number.
E: Yeah, I'll take that. Hi, DC101.
MC5: Hi Elliot. This is, this is, ah, [fifth male student
caller].
E: Yes, of course it is.
2M: Sure.
E, 2M: Hi [fifth male student caller].
MC5: Yeah. I go to O'Connell.
E: Right.
MC5: And, uh, I just want to let you know that the girls are not
18. They're only 17.
E: But that's not my fault though. Listen.
MC5: No dude, no dude. I know exactly like what happened. You
didn't manipulate them at all. But when they went into the
office yesterday they were like ``Oh, yeah, well he manipulated
us into saying these bad things.'' And Mr. Burch gets on.
Would you turn that off?
E: Yeah, please.
MC5: Mr. Burch gets on and goes, ah, yeah they are all remorseful
for what happened and they want to let everyone know that,
like, they were manipulated or whatever or something like that.
And I, like, they knew exactly what they were doing.
E: Yeah. And first of all, I think we asked twice how old they
were. Both of them said they were 18. You know what, if
they lied, they lied. That's not my problem.
MC5: Yeah, dude. It's like, it's like their fault and they just
made. I feel bad because they made the school look like a
bunch of sluts or whatever and we're really not.
E: Well, listen you gotta have some kind of pride in something.
[Laughter from D] But the, ah, you know, we didn't badger
them. We didn't manipulate them. You heard the show yesterday.
MC5: Yeah. I was listening to it. I thought it was kind of
funny because then I knew exactly who it was. [Laughter from
E, D and 2M]
E: See so um, you know I can't really say I fault [first female
student caller] and [second female student caller] `cause
listen they know they're getting thrown out of school. I'd
say that too.
MC5: They're coming back.
E: Well, how long did they get suspended for?
MC5: Um, I think like maybe two days or whatever.
E: Right.
MC5: It's almost like a good deal.
E: Well, yeah exactly. Well, at least they're free to come in
tomorrow.
D: What are their parents doing though?
MC5: I don't know. I think they're probably in trouble with them
too.
E: Oh really.
D: I would think so.
E: I hear Burch told [first female student caller] she's gotta
give up semen for Lent last year.
2M: Agh.
D: Jesus Christ.
2M: Do you know them very well?
MC5: Yeah, I'm pretty close them. At least one of them.
E: Really? Have you ever been lined up, have you ever had your
back up against a locker? [Laughter from D]
MC5: No. Actually they don't do that kind of stuff at school.
E: At school.
2M: No. They save that.
MC5: Actually, I hope I just don't wanna know about it. They can
do whatever they want. I just don't want to know about it.
E: Alright, very good. Well, listen I'm sorry about the big
uproar at your school yesterday.
MC5: Ah, it was kind of amusing.
E: Good. [Laughter from 2M] Good, alright, dude, [fifth male
student caller]. Thank you very much for calling.
MC5: Thank you, you're welcome.
E: You're gonna need to hand me the handset and let me just
call them. [Dial tone, dialing] Oops, that's not good.
[Dial tone, dialing] Agh. [Dial tone] Because I hate this
phone system. [Dialing] Because now it's a fight. Uh-huh.
[Sound of phone ringing] Uh, uh, hands free. They gotta be
in the office by now.
2M: Yeah.
D: 7:30.
2M: The administration should be.
D: I was looking at the.
E: Maybe Jesus will answer.
D: The class schedule. Home room.
E: What time does home room start? Hi, Bishop O'Connell. Um,
who am I speaking with? Hi, Mrs. Minyet. You're not on the
air. This is Elliott calling from DC101. I'm trying to find
Principal Burch, please. Hello. Hello. I don't know if I'm on
hold or if I'm uh talking to Mr. Click.
2M: Really.
D: Maybe you'll find out in a second.
E: Hello. They don't say, ``Hold.''
2M: They never even said ``please hold'' or?
E: No.
2M: Hang on?
E: First bell's at 7:55. You know what. [Dial tone, sound of
tone buttons, ringing] [Laughter from 2M] Shhh. Come on.
They're afraid to touch the phone. Ahh, come on now I get an
answering machine. Hi DC101.
FC3: Hey, what's up Elliot?
E: Hey, who is this?
FC3: Let's see, what can you call me? I'm scared too now like
all the other [unintelligible]
E: Ah, don't be scared.
FC3: [Laughter] You can call me, you can call me [third female
student caller]. How about that?
E: Okay, [third female student caller]. Yes.
FC3: You can call me [third female student caller]. Well, I go
to O'Connell like all the rest of them. Those are all my
friends that were calling earlier. And I just wanted to say
that it was like the reason that they all got suspended
wasn't because, you know, like, about anything, because it
was immoral or anything what they were gonna do. Because I
don't even think they were really gonna come in because
they were lying, like, they weren't 18 or anything else.
They were a bunch of sophomores. But there's a . . . .
E: Oh, God. I wish they would come in.
2M: So they're 16.
E: Anyway, go ahead.
FC3: There's a rule in the student handbook that says that if you
do anything, like, in the name, like, using O'Connell's name
or, like, in O'Connell uniform that you can be suspended because
that's slander towards the school.
E: Oh, that's, uh, you're impugning the reputation.
FC3: Yeah, so when you went on the website and everything that's
when Mr. Burch freaked out and was, like, oh, blah blah blah,
this makes my school look horrible.
E: Hey, Burch, don't put up a website then, you jackass.
D: What I I was just, I was just reading the, uh, the beliefs
and mission and philosophy of the school.
2M: Yeah, if anything
D: I know.
E: We gave them some positive publications here.
2M: Yeah.
FC3: And also I wanted to say that I'm really sorry cause there
were a lot of really hot girls, including myself, that were
gonna come in.
E: Oh, godamnit.
FC3: And we were gonna audition tomorrow morning.
E: Alright.
FC3: We really wanted to do it.
E: Yeah. I wish you would have.
FC3: I'm sorry.
E: Alright. Well, Burch had to go F it up for everybody.
D: Bye [third female student caller].
E: Let me try one more time and then I'll take a break. And
then we'll get into some real qualifying. Uh, I'll just
dial here. [Dialing tones] You think they won't answer at
Bishop when I call cause a big sign that goes off ``Jew is
calling.'' [Laughter D and 2M] [Impersonating a female
voice] Yes, Principal Burch, please? What do you mean he's not
available? Oh, don't hang up. F you. [Laughter from 2M]
2M: They know what matters [unintelligible].
E: What a bitch she is.
D: What she say?
2M: I can't believe she doesn't even say anything to you.
E: [In a mocking voice] ``He's not available.'' Click. I bet
he's available. He's probably standing right there listening
to the goddamn show.
D: I guess they have to go tend to the pro-life memorial.
[Laughter from E] that I was just reading about.
E: Come on Burch you big pussy, call. You know he's sitting in
there listening to it. Speak to a Jew. [Laughter from D]
Goddamnit. Alright, alright. You know what, let's move on then.
Ah, 202- 432-1101, toll free 1-800-33DC101. Ah, we need
qualifiers for, ah, Saturday night. If you want to dance
in the cage with Kid Rock up on stage 202-432- 1101, toll free
1-800-33DC101. We'll sign up last day for qualifying and then
tomorrow's the big audition, tomorrow around 7:30. And
then four women will move on to Saturday night where they'll
dance up on stage at the Patriots Center. Kid Rock will
pay for the night. 202-432-1101, toll free 1-800-33DC101.
[Commercial for the Kid Rock Dance-in-the-Cage Concert]
``''``''``''``''``''``''``''``''``''``''``''``''``''``''``''``''-
``''``''
ATTACHMENT B
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Statement of Commissioner Michael J. Copps,
Dissenting
Re: Infinity Broadcasting Operations, Inc., Licensee of Stations
WNEW(FM), New York, New York; WYSP(FM), Philadelphia,
Pennsylvania; KYCY(AM), San Francisco, California; Infinity Radio
Operations, Inc., Licensee of Stations WBUF(FM), Buffalo, New
York; KSFN(AM), North Las Vegas, Nevada; WXTM(FM), Cleveland
Heights, Ohio; WAZU(FM), Circleville, Ohio; KUPL(AM), Portland,
Oregon; Infinity Radio Subsidiary Operations, Inc., Licensee of
Station KXOA(FM), Roseville, California; Infinity Broadcasting
Corporation of Dallas, Licensee of Station KLLI(FM), Dallas,
Texas; Infinity Broadcasting Corporation of Washington, D.C.,
Licensee of Station WJFK-FM, Manassas, Virginia; Infinity
Holdings Corporation, Licensee of Station WCKG(FM), Elmwood park,
Illinois; Hemisphere Broadcasting Corporation, Licensee of
Station WBCN(FM), Boston, Massachusetts, Notice of Apparent
Liability for Forfeiture; AMFM Radio Licenses, Licensee of
Station WWDC-FM, Washington, D.C., Notice of Apparent Liability
for Forfeiture
I dissent from the Commission's decisions to provide no more
than a slap on the wrist to Infinity (owned by Viacom) and Clear
Channel rather than take serious action to address indecency on
our airwaves. Today, the majority proposes a $27,500 fine for
each incident of airing what the majority agrees appears to be
indecent programming at a time when children likely composed a
significant portion of the audience.
In the case of Infinity/Viacom, thirteen stations ran the
``Opie & Anthony Show'' which contained a broadcast of sexual
activity at St. Patrick's Cathedral in New York as part of an on-
air stunt. In this stunt, called ``Sex for Sam,'' couples
received points for having sex in public places. In addition to
St. Patrick's Cathedral, the broadcast described sexual activity
at restaurants, at the Disney Store and at FAO Schwartz. In the
case of Clear Channel, one of its stations, WWDC-FM, broadcast an
``Elliot in the Morning'' show which included a station-sponsored
promotion to which female high school students called in for the
opportunity to audition to dance in a cage at an upcoming rock
concert. The show's hosts questioned the girls about their
sexual activities at their school -- Bishop Denis J. O'Connell
High School -- actively solicited other high school students to
call, and made repeated and graphic references to oral sex.
Neither of these cases is a difficult call. Both are
outrageous and both were run by stations whose owners knew better
and whose parent companies have had previous indecent broadcasts
brought before this Commission. I believe we should designate
these cases for a hearing on the possible revocation of these
stations' licenses, as provided for by section 312(a)(6) of the
Communications Act.
I am particularly troubled by the decision on the ``Opie and
Anthony Show.'' I defy anyone to read the transcript and argue
that this broadcast does not violate the statutory prohibition
against airing indecent material. And I defy anyone to argue
that a $27,500 fine to each of the stations owned by a multi-
billion dollar conglomerate is adequate to address this clear
violation of federal law.
Infinity/Viacom could pay this entire fine by tacking just
one more commercial onto one of its prime-time TV shows and
probably pocket a profit to boot. Some punishment!
The majority admits that each of these stations appears to
have egregiously and extensively violated the statutory ban on
broadcast of indecent material. The majority claims further to
recognize the seriousness of the offense. And it even concedes
that the Commission has the option of the license revocation
process. But then it turns timid and decides that the
appropriate recourse for this filth is a $27,500 fine against
each station. In other words, the majority determines that these
stations deserve yet another chance before the Commission even
considers revoking a license. When, I ask, will this end?
This is not the first action against a station owned by
Infinity. Infinity stations paid $1.7 million in 1995 to settle
a series of indecency cases. As part of that settlement,
Infinity agreed to take steps to prevent further broadcast of
indecent material. More complaints involving other Infinity
broadcasts followed. Last April, this Commission issued another
tepid proposed fine against another station owned by this same
company - WKRK-FM in Detroit - which had aired some of the most
vulgar and disgusting indecency that I have had the misfortune to
examine. In that decision, the majority warned that repeated
serious violations by Infinity could result in the revocation of
station licenses. The majority repeats that same warning again
in this decision.
Yet, two months prior to the airing of ``Sex for Sam'' on
the ``Opie and Anthony Show,'' this agency cited the same show
for three separate apparent violations of the indecency statutes.
These shows aired between November 2000 and January 2001. In one
instance, a graphic song about a father having oral sex with his
young daughter was broadcast. In the second instance, the ``Opie
and Anthony Show'' aired another graphic song by a man seeking
girls between the ages of two and three for sex. In the third
instance, the show provided detailed instructions to a teenager
and then broadcast her rubbing a telephone between her legs.
If this situation does not meet the majority's test for
repeated violators, I fail to understand what would. The message
to licensees is clear. Even egregious repeated violations will
not result in revocation of a license. Rather, they will result
only in a financial penalty that doesn't even rise to a serious
cost of doing business.
I wonder when this Commission will finally take a firm stand
against the ``race to the bottom'' on our airwaves. The time has
come for us to send a message that we are serious about enforcing
the indecency laws of our country and that we will be especially
vigilant about the actions of repeat offenders such as those
cases before us here. Instead we turn an apparently incurable
deaf ear to millions of Americans who are fed up with the
patently offensive programming sent into their homes so
regularly. Today's decision does nothing to discourage such
programming.
It all comes down to this: station owners aren't given
licenses to use the public's airwaves to peddle smut. They are
given licenses to serve the public interest.
Separate Statement of Commissioner Kevin J. Martin
Re: AMFM Radio Licenses, LLC, Licensee of Station WWDC-FM,
Washington, DC,, Notice of Apparent Liability for Forfeiture
I support the finding in this Notice of Apparent Liability that
the licensee apparently violated our rule against the broadcast
of indecent content, but I would have proposed a higher fine. I
am concerned, for example, that the hosts of this show engaged in
these on-the-air telephone conversations with minors. As I have
said in similar cases, we could have found that each time the
show's hosts started talking about an indecent topic or had a
separate distinct conversation, the ensuing conversation
constituted a separate violation.58 In prior cases, the
Commission has acknowledged that we have the discretion to
consider each indecent utterance a separate violation.59
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN ADELSTEIN
Re: AMFM Radio Licenses, LLC, Notice of Apparent Liability for
Forfeiture
This Notice sends the unmistakable message to Clear Channel
and other broadcasters who violate our indecency rules: We are
stepping up our enforcement. Once again, we give fair warning
that the Commission can and will avail itself of a range of
enforcement sanctions, including the initiation of proceedings
that could result in the revocation of these stations' licenses.
I will not hesitate to consider such revocation proceedings for
serious violations that occur after the explicit notice we
provided in April in WKRK-FM. Similarly, as broadcasters were
explicitly notified in April, I will also support on a going-
forward basis an approach that treats each indecent utterance,
such as distinct conversations or program segments, as a separate
violation under our rules. This will substantially increase our
fines, which by statute are capped at an inadequate level, so
they will be more commensurate with the offenses.
The Commission reached the obvious conclusion that AMFM
Radio Licenses, whose corporate parent is Clear Channel,
broadcast indecent material and should be liable for the full
statutory maximum forfeiture amount. It took far too long for us
to reach this conclusion, and I hope we will act more swiftly in
the future to send a clear message.
AMFM's actions here were unquestionably willful and
egregious. Hosts of the ``Elliot in the Morning'' program
repeatedly probed school students about sexual activity conducted
inside a Catholic high school and actively solicited calls from
other students to elicit similar information. The hosts
amplified their sexual banter by simulating the act of oral sex
with numerous sound effects broadcast over the air. Goading
school children in a pandering manner to discuss sexual
activities of students and administrators in a school setting
shows a deliberate attempt to heighten the shock to listeners.
The broadcasts clearly offended community standards.
Unfortunately, the statutory constraints on our ability to
level fines are currently inadequate, as the low fines can be
considered by broadcasters as a cost of doing business and not a
serious deterrent. In this case, a fine below the statutory
maximum would not accurately reflect the circumstances and AMFM's
culpability. I believe strongly that our fines, or other
appropriate enforcement actions, should be sufficient to deter
broadcasters from broadcasting indecent material on the public's
airwaves at a time when children are listening. Today's action,
while an important step in that direction, must be followed by
more stringent, swifter and stricter enforcement of our statutory
obligation to prevent indecent broadcasts over the public
airwaves.
_________________________
1 47 U.S.C. § 503(b)(2002); 47 C.F.R. § 1.80(2002).
2 See Letter from Reverend Michael G. Taylor, Chaplain, Assistant
Principal, Bishop O'Connell High School, to Commissioner Michael
J. Copps, Federal Communications Commission, dated May 23, 2002
(``Reverend Taylor Letter''); Letter from Catherine P. Henry to
Enforcement Bureau, Federal Communications Commission,
Enforcement Bureau, dated May 8, 2002 (complaining about the
broadcasts and additionally enclosing 73 letters from Bishop
O'Connell students, who complained that the broadcasts denigrated
Bishop O'Connell High School's principal and student body).
3 Reverend Taylor Letter at 1.
4 See Program transcript, Attachment A.
5 Id. at 10-15
6 Id. at 14.
7 Id. at 11, 14.
8 Id. at 10-12, 14-15.
9 Id. at 11.
10 Id. at 14.
11 Id. at 12.
12 Id. at 15.
13 Id. at 14-15.
14 Id. at 12, 14-17.
15 Id.. at 12.
16 Id. at 17.
17 Id. at 17-18.
18 Id. at 20.
19 Id. at 23.
20 Id. at 24.
21 Id. at 26.
22 Id. at 23-24, 26.
23 See Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission to AMFM Radio Licenses, LLC, dated November 15, 2002.
24 See Letter from Kenneth E. Wyker, Senior Vice President and
General Counsel, Clear Channel Communications, Inc. to Marlene H.
Dortch, Secretary, Federal Communications Commission, dated
December 16, 2002 (``Clear Channel Response to Inquiry'').
25 See Letter from Maureen F. Del Duca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission to AMFM Radio Licenses, LLC, dated July 2, 2003. We
note that the staff appropriately now routinely asks, in letters
of inquiry issued in response to indecency complaints, whether
the licensee (or co-owned stations) broadcast the complained-of
material on other stations.
26 See Letter from Richard W. Wolf, Vice President, Clear Channel
Communications, Inc. to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated July 7, 2003.
27 See 47 U.S.C. § 326(2002).
28 See 18 U.S.C. § 1464.
29 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47
U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
1464). Section 312(f)(1) of the Act defines willful as ``the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate'' the law. 47 U.S.C. §
312(f)(1). The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both
sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th
Cong. 2d Sess. 51 (1982), and the Commission has so interpreted
the term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal
leakage). ``Repeated'' merely means that the act was committed
or omitted more than once, or lasts more than one day. Southern
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
30 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
31 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
(forfeiture paid).
32 Title 18 of the United States Code, section 1464 (18 U.S.C. §
1464), prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' FCC v.
Pacifica Foundation, 438 U.S. 726 (1978). See also Action for
Children's Television v. FCC, 852 F.2d 1332, 1339 (D.C. Cir.
1988) (``ACT I''); Action for Children's Television v. FCC, 932
F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 503 U.S. 914
(1992) (``ACT II''); Action for Children's Television v. FCC , 58
F. 3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996)
(``ACT III'').
33 ACT I, 852 F.2d at 1344 (``Broadcast material that is indecent
but not obscene is protected by the First Amendment; the FCC may
regulate such material only with due respect for the high value
our Constitution places on freedom and choice in what people may
say and hear.'') See also United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813-15 (2000).
34 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)).
35 Industry Guidance on the Commission's Case Law Interpreting 18
U.S.C. §1464 and Enforcement Policies Regarding Broadcast
Indecency (``Indecency Policy Statement''), 16 FCC Rcd 7999,
8002, ¶¶ 7-8 (2001) (emphasis in original).
36 Clear Channel Response to Inquiry at 1.
37 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and with
respect to Commission decisions, does not encompass any
particular geographic area. See id. at ¶ 8 and n. 15.
38 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis
in original). In this regard, in order for us to be in a
position to judge the context of particular material, once a
complainant makes a prima facie case, it is appropriate for the
staff to seek from the licensee a tape or transcript not only of
the relevant material, but also of a reasonable amount of
preceding and subsequent material.
39 Id. at 8002-15, ¶¶ 8-23.
40 Id. at 8003, ¶ 10.
41 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM), 12 FCC
Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
explicit nature of references to sex with children outweighed the
fleeting nature of the references); EZ New Orleans, Inc.
(WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same).
42 Id. at 8010, ¶ 20 (``the manner and purpose of a presentation
may well preclude an indecency determination even though other
factors, such as explicitness, might weigh in favor of an
indecency finding'').
43 See notes 18, 20 and 22, and accompanying text, supra.
44 See notes 11, 15, 16, 17, 19 and 22, and accompanying text,
supra.
45 See Indecency Policy Statement, 16 FCC Rcd at 8003-04, ¶ 12
(2002); see also Telemundo of Puerto Rico License Corp. (WKAQ-
TV), 16 FCC Rcd 7157 (EB 2001) (forfeiture paid); Citcasters Co.
(KEGL(FM), 15 FCC Rcd 19091 (EB 2000) (forfeiture paid).
46 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873, 6874
(1972) (subsequent history omitted).
47 See notes 11 through 14, supra.
48 See ACT III, 58 F.3d at 660-63.
49 See, e.g., Citicasters Co. (KEGL(FM)), 16 FCC Rcd 7546 (EB
2001) (forfeiture paid) (finding a station apparently liable for
broadcasting a dialogue between program hosts and a female
teenage caller in which she engaged in sexual banter with the
hosts, responded to their probing questions and described her
masturbating activities); Infinity Broadcasting Operations, Inc.
(WNEW(FM)), 17 FCC Rcd 10665 (EB 2002)(response pending)(finding
a station apparently liable for airing a segment, during the
program's promoted ``Teen Week,'' in which the program hosts
gave detailed instructions to and encouraged a teenage girl
caller to masturbate by rubbing a telephone across her pubic
area).
50 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''); 47 C.F.R. §
1.80(b).
51 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
52 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''); 47 C.F.R. §
1.80(b).
53 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶ 27.
54 Citicasters Co. (KEGL(FM)), 16 FCC Rcd 7546 (EB 2001)
(forfeiture paid); Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19095
(EB 2000)(forfeiture paid); Citicasters Co. (KSJO(FM)), 15 FCC
Rcd 19091 (EB 2000)(forfeiture paid).
55 See Infinity Broadcasting Operations, Inc.(WKRK-FM), 18 FCC
Rcd 6915, 6919, ¶ 13 (2003)(response pending).
56 47 C.F.R. § 1.1914 (2002).
57 Consistent with section 503(b) of the Act and Commission
practice, for the purposes of the forfeiture proceeding initiated
by this NAL, AMFM shall be the only party to this proceeding.
58 See Separate Statement of Commissioner Kevin J. Martin,
Infinity Broadcasting Operations, Inc., Licsnesee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 6915 (2003) (Infinity Detroit NAL).
59 Infinity Detroit NAL at para. 13 (clarifying that the
Commission could pursue enforcement action for each indecent
utterance). See also 18 U.S.C. § 1464 (specifying that
``[w]hoever utters any obscene, indecent, or profane language by
means of radio communication shall be fined under this title or
imprisoned not more than two years, or both.'').