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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CLEAR CHANNEL COMMUNICATIONS, ) NAL/Acct. No. 200432080140
INC. ) FRN No. 0005813753
)
AMFM RADIO LICENSES, L.L.C., ) FRN No. 0001656586
) NAL/Acct. No. 200432080016
CLEAR CHANNEL BROADCASTING ) FRN No. 0001587971
LICENSES, INC. AND ) NAL Acct. No. 200432080017
)
CAPSTAR TX LIMITED PARTNERSHIP ) FRN No. 0003474905
) NAL/Acct. No. 200432080018
Licensees of Stations )
WWDC(FM), Washington, D.C., ) Facility ID No. 8682
WRXL(FM), Richmond, Virginia ) Facility ID No. 11961
and WOSC(FM), Bethany Beach, ) Facility ID No. 4674
Delaware )
)
Notice of Apparent Liability )
for Forfeiture released March )
12, 2004 (FCC 04-47)1 ) NAL/Acct. No. 200432080012
) FRN No. 0003474947
CAPSTAR TX LIMITED PARTNERSHIP )
) Facility ID No. 14376
Licensee of Stations ) Facility ID No. 41066
WAVW(FM), Stuart, Florida and )
WCZR(FM), Vero Beach, Florida )
)
Notice of Apparent Liability )
for Forfeiture released March )
18, 2004 (FCC 04-36)2 ) NAL/Acct. No. 20042380023
) FRN No. 0004953659
CLEAR CHANNEL BROADCASTING )
LICENSES, INC. )
CITICASTERS LICENSES, L.P. AND )
CAPSTAR TX LIMITED PARTNERSHIP ) Facility ID No. 11965
) Facility ID No. 53457
Licensees of Stations ) Facility ID No. 53593
WBGG-FM, Fort Lauderdale, ) Facility ID No. 13504
Florida, WTKS-FM, Cocoa Beach, ) Facility ID No. 24958
Florida, ) Facility ID No. 60153
WTFX-FM, Louisville, Kentucky, )
KIOZ(FM), San Diego, )
California, WNVE(FM), Honeoye )
Falls, New York and WXDX-FM,
Pittsburgh, Pennsylvania
Notice of Apparent Liability
for Forfeiture released April
8, 2004 (FCC 04-88)3
ORDER
Adopted: June 4, 2004 Released: June
9, 2004
By the Commission: Chairman Powell issuing a statement;
Commissioner Adelstein approving in part, dissenting in part and
issuing a statement; Commissioner Copps dissenting and issuing a
statement.
1. The Commission has been investigating whether Clear
Channel Communications, Inc. and its direct and indirect
subsidiaries that hold FCC authorizations (``Clear Channel'') may
have violated restrictions on the broadcast of obscene, indecent
or profane material.4
2. The Commission and Clear Channel have negotiated the
terms of the Consent Decree, a copy of which is attached hereto
and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we
find that the public interest would be served by approving the
Consent Decree and terminating all pending proceedings against
Clear Channel relating to restrictions on the broadcast of
obscene, indecent or profane material.
4. Based on the record before us, in particular Clear
Channel's admission that some of the material it broadcast was
indecent in violation of 47 C.F.R. § 73.3999, the significant
remedial efforts that Clear Channel has already taken and the
additional remedial efforts to which Clear Channel has agreed, we
conclude that there are no substantial and material questions of
fact in regard to these matters as to whether Clear Channel
possesses the basic qualifications, including its character
qualifications, to hold or obtain any FCC licenses or
authorizations.
5. Accordingly, IT IS ORDERED, pursuant to Sections 4(i),
4(j), and 503(b) of the Communications Act of 1934, as amended,5
that the attached Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the Secretary SHALL SIGN the
Consent Decree on behalf of the Commission.
7. IT IS FURTHER ORDERED that the above-captioned
Commission Notices of Apparent Liability for Forfeitures against
Clear Channel regarding possible violations of 18 U.S.C. §1464
and 47 C.F.R. § 73.3999 ARE RESCINDED, VACATED and CANCELLED, all
Enforcement Bureau investigations regarding possible violations
by Clear Channel of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999 ARE
TERMINATED, and all third-party Complaints against Clear Channel
for possible violations of 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999 pending before the Enforcement Bureau as of the date of
the Consent Decree ARE DISMISSED WITH PREJUDICE.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
---------------------
Consent Decree
1. The Federal Communications Commission and Clear Channel
Communications, Inc., for itself and on behalf of its direct and
indirect subsidiaries that hold FCC authorizations, hereby enter
into this Consent Decree for the purpose of resolving and
terminating certain forfeiture proceedings, investigations and
complaints currently being conducted by, or pending before, the
Commission relating to possible violations of the Indecency Laws
by Clear Channel Stations.
2. For purposes of this Consent Decree the following
definitions shall apply:
1)a. "Act" means the Communications Act of 1934, as amended,
47 U.S.C. § 151 et seq.
1)b. "Adopting Order" means an order of the FCC adopting
this Consent Decree, without any modifications adverse to
Clear Channel or any Clear Channel Station;
1)c. "Bureau" means the FCC's Enforcement Bureau;
1)d. "Clear Channel Station" and "Clear Channel Stations"
means one or more broadcast stations operated by Clear
Channel;
1)e. "Clear Channel" means Clear Channel Communications,
Inc., and all of its direct and indirect subsidiaries that
hold authorizations issued by the FCC;
1)f. "Commission" or "FCC" means the Federal Communications
Commission;
1)g. "Complaints" means third-party complaints received by,
or in the possession of, the Bureau, alleging violations of
the Indecency Laws by Clear Channel Stations, including (but
not limited to) complaints that have resulted in letters of
inquiry from the Bureau (``LOIs'').
1)h. "Effective Date" means the date on which the FCC
releases the Adopting Order;
1)i. "Final Order" means the status of the Adopting Order
after the period for administrative and judicial review has
lapsed;
1)j. "Indecency Laws" means 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999.
1)k. "Inquiries" means investigations of alleged violations
of the Indecency Laws by Clear Channel Stations that have
resulted in LOIs to Clear Channel, or to other licensees
that relate to Clear Channel Stations;
1)l. "NALs" means Notices of Apparent Liability for
Forfeiture issued pursuant to Section 1.80 of the Rules,
including (i) that certain Notice of Apparent Liability for
Forfeiture concerning AMFM Radio Licenses, L.L.C., et al.,
released March 12, 2004 (FCC 04-47), (ii) that certain
Notice of Apparent Liability for Forfeiture concerning
Capstar TX Limited Partnership released March 18, 2004 (FCC
04-36), and (iii) that certain Notice of Apparent Liability
for Forfeiture concerning Clear Channel Broadcasting
Licenses, Inc., released April 8, 2004 (FCC 04-88).
1)m. "Parties" means Clear Channel Communications, Inc., and
the Commission;
1)n. "Rules" means the Commission's regulations found in
Title 47 of the Code of Federal Regulations;
I. BACKGROUND
3. Both the Commission and Clear Channel acknowledge that
any proceedings that might result from the NALs, the Inquiries
and/or the Complaints will be time-consuming and will require
substantial expenditure of public and private resources.
4. In order to conserve such resources, and to promote
compliance by Clear Channel with the Indecency Laws, the
Commission and Clear Channel are entering into this Consent
Decree, in consideration of the mutual commitments made herein.
II. AGREEMENT
5. The Parties agree that the provisions of this Consent
Decree shall be subject to approval by the Commission by
incorporation of such provisions by reference in an Adopting
Order.
6. The Parties agree that this Consent Decree shall become
effective on the date on which the Commission releases the
Adopting Order. Upon release, the Adopting Order and this
Consent Decree shall have the same force and effect as any other
orders of the Commission and any violation of the terms of this
Consent Decree shall constitute a violation of a Commission
order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
7. Clear Channel agrees that the Commission has
jurisdiction over the matters contained in this Consent Decree
and the authority to enter into and adopt this Consent Decree.
8. As part of the Adopting Order, the Commission shall
rescind, vacate and cancel the NALs, shall terminate the
Inquiries, and shall dismiss with prejudice the Complaints. From
and after the Effective Date, the Commission shall not, either on
its own motion or in response to any petition to deny or other
third-party objection, initiate any inquiries, investigations,
forfeiture proceedings, hearings, or other sanctions or actions
against Clear Channel, any Clear Channel Station, or any pending
or future application to which Clear Channel is a party
(including, without limitation, any application for a new
station, for renewal of license, for assignment of license, or
for transfer of control), based in whole or in part on (i) the
NALs, (ii) the Inquiries, (iii) the Complaints, (iv) any other
similar complaints alleging violation by any Clear Channel
Station of the Indecency Laws with respect to any broadcast
occurring prior to the Effective Date, or (v) the allegations
contained in any of the foregoing. Without limitation to the
foregoing, the FCC shall not use the facts of this Consent
Decree, the NALs, the Inquiries, the Complaints, any other
similar complaints alleging violation by any Clear Channel
Station of the Indecency Laws with respect to any broadcast
occurring prior to the Effective Date, or the underlying facts,
behavior, or broadcasts that relate to any of the foregoing, for
any purpose relating to Clear Channel or any Clear Channel
Station, and shall treat all such matters as null and void for
all purposes.
9. Clear Channel represents that it has adopted, and is
currently in the process of implementing, a company-wide
compliance plan for the purpose of preventing the broadcast of
material violative of the Indecency Laws. A summary of that plan
is set forth in the Attachment. Clear Channel agrees, to the
extent it has not already done so, to implement this compliance
plan within thirty (30) days of the Effective Date and to keep
such compliance plan in effect for three (3) years after the
Effective Date. Clear Channel reserves the right to revise the
plan from time to time, provided that the Commission shall be
given not less than thirty (30) days advance written notice of
any revisions to the plan.
10. Within five (5) business days after the Adopting Order
becomes a Final Order, without any modifications to this Consent
Decree adverse to Clear Channel or to any Clear Channel Station,
Clear Channel shall make a voluntary contribution to the United
States Treasury in the amount of One Million Seven Hundred Fifty
Thousand Dollars ($1,750,000). Clear Channel must make this
payment by check, wire transfer or money order drawn to the order
of the Federal Communications Commission, and the check, wire
transfer or money order shall refer to Acct. No. 200432080140 and
FRN No. 0005813753. If Clear Channel makes this payment by check
or money order, it must mail the check or money order to:
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
606073-7482. If Clear Channel makes this payment by wire
transfer, it must wire such payment in accordance with Commission
procedures for wire transfers.
11. Clear Channel waives any and all rights it may have to
seek administrative or judicial reconsideration, review, appeal
or stay, or to otherwise challenge or contest the validity of
this Consent Decree and the Adopting Order, provided no
modifications are made to the Consent Decree adverse to Clear
Channel or any Clear Channel Station. If the Commission, or the
United States acting on its behalf, brings a judicial action to
enforce the terms of the Adopting Order or this Consent Decree,
or both, Clear Channel will not contest the validity of this
Consent Decree or of the Adopting Order and will waive any
statutory right to a trial de novo. If Clear Channel brings a
judicial action to enforce the terms of the Adopting Order or
this Consent Decree, or both, the Commission will not contest the
validity of this Consent Decree or of the Adopting Order.
12. Clear Channel admits, solely for the purpose of this
Consent Decree and for FCC civil enforcement purposes, and in
express reliance on the provisions of Paragraph 8 hereof, that
the broadcast material at issue in the NALs and certain of the
broadcast material at issue in the Inquiries is indecent in
violation of 47 C.F.R. § 73.3999, assuming construction of this
term as it is construed by the Commission as of the date hereof.
Notwithstanding any other provision of this Consent Decree, it is
expressly agreed and understood that if this Consent Decree, or
Paragraph 8 hereof, or both, are breached by the Commission, or
are invalidated or modified to Clear Channel's prejudice by the
Commission or by any court, then and in that event the provisions
of the immediately-preceding sentence shall be of no force or
effect whatever, and Clear Channel shall not, by virtue of that
sentence or any other provision of this Consent Decree, be deemed
to have made any admission concerning any material broadcast on
any Clear Channel Station.
13. In the event that this Consent Decree is rendered
invalid in any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal
proceeding.
14. Clear Channel hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. §
504 and 47 C.F.R. § 1.1501 et seq., relating to the matters
addressed in this Consent Decree.
15. Each party represents and warrants to the other that is
has full power and authority to enter into this Consent Decree.
16. This Consent Decree may be executed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
By: _________________________________________
Marlene H. Dortch
Secretary
Date:
CLEAR CHANNEL COMMUNICATIONS, INC .
(For itself and on behalf of its direct and indirect
subsidiaries that hold FCC authorizations)
By: _______________________________________
Andrew W. Levin
Executive Vice-President and Chief Legal Officer
Date:
COMPLIANCE PLAN
Clear Channel has adopted, and is implementing, a company-
wide compliance plan for the purpose of preventing the broadcast
over radio or television of material violative of the Indecency
Laws. This compliance plan, known as the ``Responsible
Broadcasting Initiative,'' consists of the following four
components:
1. Clear Channel will conduct training on obscenity and
indecency for all on-air talent and employees who materially
participate in programming decisions, which will include
tutorials regarding material that the FCC does not permit
broadcasters to air. This training will also include
components that educate Clear Channel employees about its
values, mission and sense of corporate responsibility. Such
training will be provided to all such Clear Channel
employees within thirty (30) days of the Effective Date of
this Compliance Plan. The training will be provided to all
such new Clear Channel employees promptly after they
commence their duties. Refresher training will be provided
to all employees described above at least once every twelve
(12) months.
2. If a Clear Channel station receives a Notice of Apparent
Liability or other proposed action for a broadcast occurring
after the adoption of this Initiative that the Commission
believes to be obscene or indecent, the following steps will
be taken:
2)a. The employees accused of airing, or materially
participating in the decision to air, obscene or indecent
content will be suspended and an investigation will
immediately be undertaken;
2)b. Such employees will be required to undergo remedial
training on the FCC's obscenity and indecency regulations
and policies and satisfy station management that they
understand where the line between acceptable and
unacceptable programming falls before resuming their duties;
and
2)c. If any such employee who is on-air talent is permitted
to return on a Clear Channel station following remedial
training, his or her broadcasts will be subjected to a
significant time delay - up to five minutes - so that a
program monitor will have the ability to interrupt a
broadcast if its content crosses the line.
3. If a Notice of Apparent Liability or other proposed action
issued by the FCC is finally adjudicated and Clear Channel
is finally found to have aired or decided to air an obscene
or indecent program that results in enforcement action by
the Commission, the offending employees will be terminated
without delay. This will ensure those employees who break
the law by broadcasting, or by materially participating in a
decision to broadcast, obscene or indecent material will not
work for Clear Channel.
4. Clear Channel will fully participate with representatives of
the broadcast, cable and satellite industries in any efforts
that may emerge to develop a voluntary industry-wide
response to indecency and violence.
STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Clear Channel Communications, Inc.
Today's consent decree marks a significant victory for the
Commission and the American public. Through the consent decree,
we have secured the highest enforcement concessions by a
broadcaster in Commission history. Clear Channel has agreed to
make the highest enforcement-related payment to the Treasury by a
broadcaster in Commission history--$1.75 million. In addition,
Clear Channel has now formally admitted that it violated the law
and has made binding commitments to clean up its act, including
preventive measures such as training for on-air personalities and
employees that participate in programming decisions and the use
of time delays in its broadcasts. In addition, those accused of
violating the Commission's rules will be suspended and if
ultimately found to violate our rules, will be terminated.
Notwithstanding these accomplishments, the government's
involvement in content regulation can be a dangerous game. Even
where well intended, in our desire, for instance, to protect
children from indecent broadcasts, encroachments on content can
have adverse affects on the public interest. By its very nature,
government action, or even mere threats, to quell protected
speech can have the unintended consequence of depriving the
public of a speaker's artistic, literary, scientific or political
viewpoint.
Grounded in the First Amendment is our forefathers' concern
that the policymaker could be tempted to misuse power for their
own self-interest. They knew that the sword that wields the
power to intentionally abridge speech and information is the most
potent instrument of all. As the Commission is tasked with
walking the delicate balance of protecting the interests of the
First Amendment with the need to protect our children, it is
incumbent upon us to make best efforts to avoid the realization
of our forefathers' concerns.
This task is made easier when our licensees wrestle the
difficult decisions away from the government and take the
responsibility for what they broadcast over our nation's
airwaves. In the case of Clear Channel Communications, they have
done just that through the substantial commitments agreed to in
this consent decree.
Oddly enough, these actions are not sufficient for some on
the Commission. In their zealousness, they would prefer to
expend valuable Commission resources to fully investigate each
complaint against Clear Channel only to inflict more punishment.
Enforcement of our regulations is not, however, simply a matter
of punishment for past behavior. More importantly, our
enforcement regime is designed to deter future illegal behavior.
Where, as here, the licensee has taken significant steps to
guard against future violations, the benefits of entering into a
consent decree for the government and the public are obvious.
Not only will a substantial amount of money be submitted to the
Treasury by the company, but we achieve significant commitments
from the company that the fines are intended to produce. In
addition, the government, and therefore the public, will save
time and resources, which can be redeployed to focus on more
egregious violators that are less willing to take preventive
steps. Finally, the government gains an admission of
responsibility from the licensee without going to the laborious
and expensive process of prosecuting these actions in court.
For one to toss aside these public benefits and demand
another pound of flesh suggests that nothing short of economic
ruin or license revocation will truly satisfy. I believe such
stances are excessively chilling of protected speech in this
country and fail to be respectful of the limits imposed upon us
by the First Amendment.
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Clear Channel Communications, Inc.
Before the Commission enters into a settlement agreement, it
should understand the full scope of what it is addressing.
Today, the Commission instead enters into a consent decree with
Clear Channel to settle all of the outstanding indecency
complaints against the company without understanding the extent
of the indecency that was broadcast. Additionally, the
Commission removes all consideration of this issue from the
license reapplication process. Despite my colleague's assertion,
my dissent is about process¾and the process here is inadequate.
What message do we send to citizens when we fail even to
investigate their complaints before making a sweeping settlement?
Here is what we do know. We know there are indecency
complaints concerning at least 200 broadcasts pending against
Clear Channel. To the extent that some of these broadcasts were
likely aired on more than one station, the number of indecency
incidents could grow much larger. We also know that over two-
thirds of the indecency fines proposed by the Commission since
2000 have been against Clear Channel. We further know that the
Commission relies entirely on viewers and listeners to file
complaints about indecent broadcasts. The FCC places a heavy
burden on complaining citizens to submit tapes, transcripts, or
significant excerpts of broadcasts before it will even initiate
an investigation. Citizens have a right to expect Commission
follow-through on their complaints. Yet all too often, these
complaints languish unaddressed at the Commission for a year or
more. Today a majority decides that, rather than investigate
these pending complaints or even seek information about these
broadcasts as part of the settlement discussions, it will wipe
the slate clean for Clear Channel.
I recognize that Clear Channel in recent months has taken
promising steps to curtail indecency on its stations. I commend
the company's initiative, yet I believe the Commission has a duty
to get an accounting of the broadcasts at issue before finalizing
a settlement agreement. Absent this process, I do not believe we
have the information needed to evaluate whether this consent
decree truly serves the public interest or whether it even
responds to the many pending but uninvestigated complaints.
I am also troubled by the possible effect of today's
decision on the Commission's license renewal process. The
totality of a broadcasters' record is pertinent and should be
considered when licenses are renewed. Today's decision takes
this entire part of the record off the table. We are closing our
ears to any citizen who believes that a station's indecency
actions over the term of its license have any bearing on its
fitness to continue using the public airwaves. This settlement
reaches too far and grants too much. It is bad enough that our
re-licensing process has degenerated to the point where the
Commission generally does not even look at a station's public
file or inquire further into the station's service to its
community unless a citizen of that particular community brings an
issue to our attention. Today, the Commission tells those
citizens that their complaints no longer matter. If we are not
actually changing the rules of the game, we are at a minimum
sending a wrong and discouraging signal to those citizens upon
whom we rely in implementing the law.
It should be a cautionary note that the Commission has gone
down this road before. Over eight years ago, the FCC entered
into a similar kind of agreement with Infinity Broadcasting to
settle a smaller number of proposed forfeitures and pending
indecency complaints. Under that agreement, Infinity paid
practically the same amount that Clear Channel is paying here and
adopted a similar compliance plan to reduce indecent broadcasts.
At that time, the Commission praised the level of the payment and
the steps Infinity took to ensure compliance with the indecency
laws. I don't know of anyone who claims that the 1995 consent
decree has resulted in less indecency on the airwaves. In fact,
over the past few years, Infinity is second only to Clear Channel
in the number of fines. Some would have us believe these fines
are powerful disincentives to big companies broadcasting
indecency. But one or two million dollar fines need to be seen
in the context of these mega-companies' multi-billion dollar
revenue streams.
Going forward, I hope my colleagues will accord prompt and
vigorous attention to any future listener complaints against
Clear Channel. Perhaps the company will be so vigilant that
there will be none. In the meantime, I am reminded that
President Reagan, whose passing America mourns this week,
admonished us ``to trust but verify.'' His statement was made
in a foreign policy context, but I think it is equally applicable
here.
This Commission, charged with significant public
responsibilities, must always be at pains to demonstrate to
citizens that their complaints will not be brushed aside and to
let industry know that Commission involvement in these issues is
not a passing fancy. Our job at the FCC is to enforce the law
and to ensure that all avenues of citizen redress are open to
those who wish to use them.
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
APPROVING IN PART AND DISSENTING IN PART
Re: Clear Channel Communications, Inc.
I support much of today's action. By admitting that certain
broadcasts violated our indecency rules, by making a sizable
contribution to the U.S. Treasury, and by entering into a
company-wide compliance plan involving training, internal
investigations and suspensions, and program delays, Clear Channel
has shown that it understands its responsibility to prevent the
broadcast of indecent material on its stations. Faithful
adherence to the compliance plan should obviate the need for
Commission enforcement in this area.
Yet before the Commission enters into a settlement that
seeks to resolve all pending matters involving a company's
indecency compliance, it should have conducted at least
preliminary investigations of those matters to understand the
full extent of the possible violations and the suitability of the
remedy. With respect to many of the pending Clear Channel
matters before the Commission, the staff has indeed investigated
the nature of the complaint and in some cases sent out inquiry
letters. Yet some of the pending complaints have not even been
investigated. It's no threat to the First Amendment to, at a
minimum, do some measure of investigation when we receive public
complaints seeking to enforce a law that Congress tasked to us
and that the courts have upheld under the First Amendment. With
respect to including these pending but uninvestigated complaints
within the scope of this decree, I dissent in part.
_________________________
1 File Nos. EB-03-0121, EB-IH-0736 and EB-03-IH-0737.
2 File No. EB-02-IH-0564-AHB.
3 File No. EB-03-IH-0159.
4 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.
5 47 U.S.C. §§ 154(i), 154(j), 503(b).