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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
YOUNG BROADCASTING OF SAN ) File No. EB-02-IH-0786
FRANCISCO, INC. ) NAL/Acct. No. 200432080010
) FRN 0004675815
Licensee, Station KRON-TV ) Facility ID No. 65526
San Francisco, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 23, 2004 Released: January 27,
2004
By the Commission: Chairman Powell, and Commissioners Copps,
Martin, and Adelstein issuing separate statements.
I. INTRODUCTION
1. In this Notice of Apparent Liability For Forfeiture
(``NAL''), issued pursuant to section 503(b) of the
Communications Act of 1934, as amended (the ``Act'') and section
1.80 of the Commission's rules,1 we find that Young Broadcasting
of San Francisco, Inc. (``Young''), licensee of Station KRON-TV,
San Francisco, California, aired program material during the
``KRON 4 Morning News'' show on October 4, 2002, that apparently
violates the federal restrictions regarding the broadcast of
indecent material.2 Based upon our review of the facts and
circumstances of this case, we conclude that Young is apparently
liable for a monetary forfeiture in the amount of Twenty-Seven
Thousand Five Hundred Dollars ($27,500.00), the statutory maximum
in this context, for broadcasting indecent material in apparent
violation of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
II. BACKGROUND
2. The Enforcement Bureau (``Bureau'') received a
complaint alleging that Station KRON-TV aired indecent material
during the ``KRON 4 Morning News'' show on October 4, 2002, at
approximately 8:25 a.m.3 Specifically, the complainant stated
that the show's hosts interviewed performers with the stage
production of ``Puppetry of the Penis,'' who appeared in capes
but were otherwise naked beneath the capes.4 The complainant
further alleged that, during the course of the interview, one of
the performers exposed his penis while preparing to demonstrate
``genital origami.''5
3. On May 27, 2003, the Bureau sent a letter of inquiry to
Young concerning the material aired over KRON-TV on October 4,
2002, and included a copy of the complaint.6 Young responded to
the Bureau's letter of inquiry on July 3, 2003, and provided a
videotape of the ``KRON 4 Morning News'' show aired between 7:00
and 9:00 a.m. on October 4, 2002.7 During a segment of the
broadcast in question, the show's hosts interviewed two male
performers who tour with the stage production ``Puppetry of the
Penis.''8 The performers appeared on camera wearing capes and
discussed their stage show, in which they appear nude in order to
manipulate and stretch their genitalia to simulate a wide variety
of ``installations,'' including objects, architecture, and
people.9 During the course of the interview, one of the
performers asked whether they could demonstrate, by stating
``should we show you a couple of quick ones?''10 One of the
show's two hosts agreed, if the demonstration was done
``quickly.''11 As the performers stood and apparently turned away
from the camera to demonstrate their act to the show's hosts, the
penis of one was fully exposed on-camera.12
4. Young maintains that the complained-of material, in
context, does not meet the Commission's indecency definition, and
that no further action is warranted. Young acknowledges that the
performer's penis was exposed, but argues that this very brief
exposure was accidental and unintentional,13 and that the
complained-of material was part of the bona fide news coverage of
the ``Puppetry of the Penis.''14 Young also points out that,
prior to the time that the segment at issue aired, the show's
hosts repeatedly referenced the subject matter of the interview
segment and suggested that parents might want to prevent their
children from viewing the interview.15 In addition, Young notes
that, immediately following the broadcast of the complained-of
material, the show's hosts twice apologized on the air and, on
the day of the broadcast, the station issued a press release
apologizing for the incident.16 Moreover, Young states that it
took disciplinary action following the broadcast by suspending
station personnel involved.17
III. DISCUSSION
5. 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.18 The Commission does, however, have the
authority to enforce statutory and regulatory provisions
restricting indecency and obscenity. Specifically, it is a
violation of federal law to broadcast obscene or indecent
programming. Title 18 of the United States Code, Section 1464
prohibits the utterance of ``any obscene, indecent or profane
language by means of radio communication.''19 In addition,
section 73.3999 of the Commission's rules provides that radio and
television stations shall not broadcast obscene material at any
time, and shall not broadcast indecent material during the period
6 a.m. through 10 p.m.
6. 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 forfeiture penalty.20 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.21 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.22 As set forth in greater
detail below, we conclude under this standard that Young is
apparently liable for a forfeiture for its apparent willful
violation of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
A. Indecency Analysis
7. Any consideration of government action against
allegedly indecent programming must take into account the fact
that such speech is protected under the First Amendment.23 The
federal courts consistently have upheld Congress's authority to
regulate the broadcast of indecent material, as well the
Commission's interpretation and implementation of the governing
statute.24 Nevertheless, the First Amendment is a critical
constitutional limitation that demands that, in indecency
determinations, we proceed cautiously and with appropriate
restraint.25
8. 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.26
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.27
9. As an initial matter, Young does not dispute that
Station KRON-TV aired adult male frontal nudity.28 Because the
broadcast material depicted a sexual organ, it therefore warrants
further scrutiny to determine whether or not it was patently
offensive as measured by contemporary community standards for the
broadcast medium.29
10. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''30 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.31 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.''32 In particular cases,
one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and
consequently indecent,33 or, alternatively, removing the
broadcast material from the realm of indecency.34 In this case,
we examine all three factors and determine that, in context and
on balance, the complained-of material is patently offensive as
measured by contemporary community standards for the broadcast
medium. We note that, in particular, the station's presentation
of full frontal nudity in a manner that was pandering,
titillating and shocking weighs heavily in this determination.
11. First, Young admits that there was an actual depiction
of the male genitalia. However, Young argues that because the
exposure of the performer's penis was accidental and the duration
of the exposure was very limited, the material is not graphic or
explicit. We disagree, finding that assertions that the exposure
was fleeting and unintentional are more appropriate to the
analysis under the second and third factors, as discussed below.
We find that in the context presented here, the depiction of
adult male frontal nudity was graphic and explicit.
12. Second, although the actual exposure of the performer's
penis was fleeting in that it occurred for less than a second,
the manner in which the station presented this material
establishes, under the third factor, that, in its overall
context, the material was apparently intended to pander to,
titillate and shock viewers. Thus, we reject Young's assertion
that this material is equivalent to other instances in which the
Commission has ruled that fleeting remarks in live, unscripted
broadcasts do not meet the indecency definition.35
13. The record here demonstrates that the station failed to
take adequate precautions to ensure that no actionably indecent
material was broadcast despite its awareness that the interview
involved performers who appear nude in order to manipulate and
stretch their genitalia.36 Under these circumstances, the airing
of indecent material during the interview was clearly
foreseeable.37 Here, we find inherently not credible Young's
assertion that certain station personnel were unaware that the
performers were nude beneath the capes worn on-camera.38 At the
beginning of the segment, one of the show's hosts explains that
the ``Puppetry of the Penis'' ``begins [...] with two naked
performers in capes with us this morning [...].''39 The
performers later acknowledged, when asked by the show's hosts,
that they perform wearing nothing more than capes, which are
discarded after four minutes, shoes and socks, and that one of
them also wears a hat.40 Moreover, the segment, as broadcast,
includes comments of station personnel who are off the set, and
who urge the performers to demonstrate by stating, ``let's see
it.''41 One of the show's hosts responds to the comment, stating,
``Jan and Janelle, they're tired of the talking[...].'' 42 The
segment also includes camera shots of these women off the set as
they observe the performers' manipulation of their genitalia.43
In addition, following the actual exposure of the performer's
penis and the off-set shots, the show's cameras were directed
only to the performers' upper bodies as they continued to
demonstrate a portion of their act, displaying their penises off-
camera.44 This indicates that the station purposefully set up its
cameras to attempt to avoid full frontal body shots, even though
this effort ultimately was unsuccessful.
14. Young nevertheless argues that the complained-of
material was not aired to pander to or titillate the audience,
nor was it broadcast for its shock value.45 Young thus maintains
that the material at issue here was not patently offensive for
the same reasons that the Commission ruled that frontal adult
nudity depicted in a broadcast of the film Schindler's List was
not patently offensive.46 We disagree. In that decision, the
Commission held that the staff of the then-Mass Media Bureau had
properly concluded that a broadcast of this film was not patently
offensive as measured by contemporary community standards for the
broadcast medium, based upon the full context of its
presentation, including the subject matter of the film, the
manner of presentation, and the warnings that accompanied the
broadcast of the film. The staff determined, and the Commission
agreed, that in the particular broadcast of the film at issue,
the depiction of adult frontal nudity was incidental to the
broadcast material's rendering of a historical view of World War
II and wartime atrocities, which, viewed in context, was not
presented in a pandering, titillating or vulgar manner.47 By
contrast, the manner of presentation of the complained-of
material over Station KRON-TV, for which the licensee failed to
take adequate precautions, was pandering, titillating and
shocking, as discussed above. We note, in particular, the off-
camera employees' comments urging the performers to conduct a
nude demonstration, and the partially off-camera demonstration to
the show's hosts.48 Considering the overall context of the
segment, the presence of warnings issued by the station is not a
sufficient basis on which to conclude that the complained-of
material is not patently offensive.49 Nor do we find that
Young's apologies to Station KRON-TV viewers and the disciplinary
actions taken against certain station employees following the
broadcast mitigate its liability for violation of the statute and
the Commission's rules.50 We find that the weight of the
pandering, titillating and shocking manner of presentation,
coupled with the graphic and explicit nature of the adult male
frontal nudity, renders this broadcast indecent under the
statute.
15. It is undisputed that the complained-of material was
broadcast within the 6 a.m. to 10 p.m. time frame relevant to an
indecency determination under section 73.3999 of the Commission's
rules. Thus, because there was a reasonable risk that children
may have been in the audience at the time that the material at
issue was broadcast on October 4, 2002, the broadcast is legally
actionable.51 By airing this material, Young apparently violated
the prohibitions in 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, the rule against broadcast indecency.
B. Proposed Forfeiture
16. Based upon our review of the record in this case, we
conclude that Young is apparently liable for the willful
violation of our rules. The Commission's Forfeiture Policy
Statement sets a base forfeiture amount of $7,000 for
transmission of indecent or obscene 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
Young is apparently liable for a forfeiture of $27,500.00, which
is the statutory maximum. Based upon our review of the entire
record, we believe that this upward adjustment is warranted. The
broadcast was extremely graphic and titillating. Given the fact
that the licensee broadcast material involving performers who
appear nude in order to manipulate their genitalia, and who were
in fact nude during the interview except for easily removed
capes, the licensee failed to take adequate precautions to
prevent the broadcast of indecent material. Consequently, the
egregious nature of the violation and the degree of culpability
justify an increase to the maximum statutory amount.
IV. ORDERING CLAUSES
17. 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,54 that Young Broadcasting of San
Francisco, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of Twenty-Seven Thousand Five Hundred
Dollars ($27,500.00) for willfully violating 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules.
18. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty (30) days of the release
of this Notice, Young SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
19. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment MUST INCLUDE
the FCC Registration Number (``FRN'')(0004675815) and also
should note the NAL/Account Number (200432080010).
20. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W, Room 3-B443, Washington D.C. 20554 and MUST INCLUDE
the NAL/Acct. No. referenced above.
21. 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.
22. 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, S.W., Washington, D.C. 20554.55
23. 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 Young qualifies as a small
entity and if it wishes to be treated as a small entity for
tracking purposes, it should 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. The certification should indicate whether Young,
including its parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's Office of
Communications Business Opportunities (``OCBO'') set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Young'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 Young has questions
regarding any of the information contained in Attachment A, it
should contact OCBO at (202) 418-0990.
24. Accordingly, IT IS ORDERED, that the complaint filed
against Station KRON-TV's broadcast on October 4, 2002, IS
GRANTED to the extent indicated herein, AND IS OTHERWISE DENIED,
and the complaint proceeding IS HEREBY TERMINATED.56
25. 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 Paul Dinovitz, President and General
Manager, Young Broadcasting of San Francisco, Inc., 1001 Van Ness
Avenue, San Francisco, California 94109 and to Young's counsel,
Mark J. Prak, Esquire and Stephen Hartzell-Jordan, Esquire,
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Wachovia
Capitol Center, Suite 1600 (27601), Post Office Box 1800,
Raleigh, North Carolina 27602, and to Pamela T. Ferguson.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
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)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
SEPARATE STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Young Broadcasting of San Francisco, Inc., Licensee, Station
KRON-TV, San Francisco, Notice of Apparent Liability for
Forfeiture
Today, we open another front in our increased efforts to
curb indecency on our nation's airwaves by focusing on indecency
on television. I believe it is irresponsible of our country's
programmers and broadcasters to continue to try and push the
envelope in the face of Commission policies aimed at balancing
the needs to protect our children with the interests of the First
Amendment. Where, as here, we believe that a broadcast crosses
that line, we will continue to enforce our indecency rules with
vigor.
SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Young Broadcasting of San Francisco, Inc., Licensee, Station
KRON-TV, San Francisco, Notice of Apparent Liability for
Forfeiture (``NAL'')
I am pleased that this Commission is finally taking an
initial step against indecency on television. That being said, I
am disappointed that this complaint was filed over 15 months ago
and we are just now addressing it. When we allow complaints to
languish for over a year, the message is loud and clear that the
FCC is not serious about enforcing our nation's laws. Meanwhile,
numerous other complaints about indecency on television remain
unaddressed. I hope we will take up those complaints
expeditiously. The time has come for this Commission to take a
firm stand against the ``race to the bottom'' on the public's
airwaves.
SEPARATE STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Young Broadcasting of San Francisco, Inc., Licensee,
Station KRON-TV, San Francisco, Notice of Apparent Liability
for Forfeiture
I support the strong action the Commission is taking
today to enforce our indecency regulations. While hard to
believe, this appears to be only the second time the
Commission has ever found a television broadcast to be
indecent. I hope that this step today represents the
beginning of a commitment to consider each indecency
complaint seriously, and to recognize that indecency on our
airwaves is not limited to the radio.
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Young Broadcasting of San Francisco, Inc.,
Licensee, Station KRON-TV, San Francisco, Notice of
Apparent Liability for Forfeiture
I strongly support the action we take today to combat
indecency on broadcast television. The Commission has a
duty to enforce statutory and regulatory provisions
restricting broadcast indecency. The material broadcast in
this case clearly warrants the statutory maximum $27,500
fine. I hope that today's action will continue to remind
broadcasters of their responsibility to serve the public
interest and protect children from indecency on the
airwaves. Today's action continues a series of measures
indicating that the Commission is stepping up its
enforcement against indecency on the airwaves.
_________________________
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999; and 47 U.S.C. §
503(b).
3 Letter from Pamela T. Ferguson to the Federal Communications
Commission, Enforcement Bureau, Investigations and Hearings
Division, dated October 7, 2002.
4 Id. We note that the complainant incorrectly identified the
stage production as ``The Penis Puppeteers.''
5 Id.
6 Letter from the Chief, Investigations and Hearings Division,
Enforcement Bureau, to Young Broadcasting of San Francisco, Inc.,
dated May 27, 2003.
7 See Letter from Mark J. Prak, Esquire, and Stephen Hartzell-
Jordan, Esquire, Brooks, Pierce, McLendon, Humphrey & Leonard,
L.L.P., counsel to Young Broadcasting of San Francisco, Inc., to
the Investigations and Hearings Division, Enforcement Bureau,
dated July 3, 2003 (``Young Response'') at 1. In addition, the
Bureau's supplemental letter of inquiry, issued July 29, 2003,
asked Young to provide information and documentation concerning
whether all or any portion of the complained-of material was
broadcast over any other commonly-owned station. Letter from the
Deputy Chief, Investigations and Hearings Division, Enforcement
Bureau, to Young Broadcasting of San Francisco, Inc., dated July
29, 2003. By letter dated August 4, 2003, Young responded that
it did not broadcast all or any portion of the complained-of
material over any station licensed to it other than Station KRON-
TV. See Letter from Mark J. Prak, Esquire, and Stephen Hartzell-
Jordan, Esquire, Brooks, Pierce, McLendon, Humphrey & Leonard,
L.L.P., counsel to Young Broadcasting of San Francisco, Inc., to
the Investigations and Hearings Division, Enforcement Bureau,
dated August 4, 2003 (``Young Supplemental Response'') at 1.
8 Young Response at Exhibits C, D, E and F.
9 Young Response at and Exhibits D, E, and F. Specifically, the
performers use their genitalia to create, among other things,
likenesses of the Eiffel Tower, a hamburger, a baby kangaroo, a
boomerang, public figures and movie characters.
10 Id. at Exhibit C, 8:22 a.m.
11 Id. at 2 and Exhibit C, 8:22 a.m.
12 Id. at Attachment 2 and Exhibit C, 8:22 a.m.
13 Id. at 1, 5, 6, 8.
14 Id. at 4.
15 Id. at 3.
16 Id. at 1, Attachment 1 and Exhibit I.
17 Young Response at 12, Exhibit H.
18 See 47 U.S.C. § 326.
19 18 U.S.C. § 1464.
20 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 18 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.
21 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
22 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591 ¶ 4
(2002)(forfeiture paid).
23 U.S. CONST., amend. I; See Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
24 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 ACT I, 852
F.2d at 1339; 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'').
25 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 id. at 1340 n. 14 (``the potentially
chilling effect of the FCC's generic definition of indecency
will be tempered by the Commission's restrained enforcement
policy.'').
26 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)).
27 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).
28 Young Response at 6.
29 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 Indecency Policy Statement, at
8002, ¶ 8 and n. 15.
30 Id at 8002, ¶ 9 (emphasis in original).
31 Indecency Policy Statement at 8002-15, ¶¶ 8-23.
32 Id. at 8003, ¶ 10.
33 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)).
34 Indecency Policy Statement, 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'').
35 Young cites Flambo Broadcasting, Inc. (KFMH-FM), Notice of
Apparent Liability for Monetary Forfeiture, 9 FCC Rcd 1681 (MMB
1994). However, in that case, no action was taken with regard to
a radio station's broadcast of sexual material in a crude joke,
because there was a conflict as to what was actually broadcast,
and no tape or other evidence to establish the language broadcast
and when the licensee cut off the outside caller's rendition of
the joke. Nevertheless, assuming that the joke was cut off
immediately, the staff of the then-Mass Media Bureau found that
it would not have been actionably indecent because it was brief,
live, unscripted and from an outside source. Young also cites
L.M. Communications of South Carolina, Inc. (WYBB(FM)), Notice of
Apparent Liability for Monetary Forfeiture, 7 FCC Rcd 1595 (MMB
1992), in which a fleeting and an isolated utterance, within the
context of a live and spontaneous broadcast, was found not
actionably indecent. See also Indecency Policy Statement, 16 FCC
Rcd at 8009, ¶ 18, setting forth the utterance broadcast in L.M.
Communications: ``The hell I did, I drove the mother-fucker, oh.
Oh.'' In addition, Young cites a contested license renewal in
which a news announcer's utterance, ``Ooops, fucked that one
up,'' was found not to warrant further action in light of the
isolated and accidental nature of the broadcast. Lincoln Dellar
(KPRL(AM) and KDDB(FM)), 8 FCC Rcd 2582, 2585 ¶ 26 (MMB 1993).
These cases are distinguishable because there was no finding that
the material, in context, was pandering, titillating or intended
to shock the audience.
36 Id. at Attachment 2, ¶ 4 (Declaration of KRON-TV's then-
Executive Producer stating that she ``gave great consideration to
the wisdom of such an interview.'').
37 CBS Radio License, Inc. (WLLD(FM)), Notice of Apparent
Liability for Monetary Forfeiture, 15 FCC Rcd 23881, 23883, ¶ 8
(EB 2000)(given licensee's awareness of the actual language used
in performers' recordings, it should have taken precautions to
avoid airing material meeting the indecency definition during a
live, unscripted broadcast), Apparent Liability for Forfeiture,
Forfeiture Order, 16 FCC Rcd 4825 (EB 2001), Memorandum Opinion
and Order denying reconsideration of Forfeiture Order, 17 FCC Rcd
18339 (EB 2002)(application for review pending); Regent Licensee
of Flagstaff, Inc., (KZGL(FM)), Notice of Apparent Liability for
Monetary Forfeiture, 15 FCC Rcd 17286, 17288, ¶ 9 (EB
2000)(forfeiture paid).
38 Young Response at 2 and Attachment 2, ¶ 6.
39 Id. at Exhibit C, 8:17 a.m.
40 Id. at Exhibit C, 8:19 a.m.
41 Id. at Exhibit C, 8:21 a.m.
42 Id. at Exhibit C, 8:22 a.m.
43 Id.
44 Id.
45 Id. at 10.
46 Id. at 10-11, citing WPBN/WTOM License Subsidiary, Inc. (WPBN-
TV and WTOM-TV), 15 FCC Rcd 1838 (2000).
47 WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1839-40, ¶¶
3,13.
48 See ¶ 13, supra.
49 See, e.g., Emmis Radio License Corporation (WKQX(FM)), Notice
of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd 5263,
5267 ¶ 13 (EB 2002), Apparent Liability for Forfeiture,
Forfeiture Order, 17 FCC Rcd 21697 (EB 2002)(petition for
reconsideration of Forfeiture Order pending); Citicasters Co.
(KEGL(FM)), Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 7546, 7547, ¶6 (EB 2001) (forfeiture paid) (licensee's
warnings to listeners that program may contain material ``more
suitable for adults'' has no bearing on whether a forfeiture
should be imposed for material that is actionably indecent).
50 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002) (remedial actions not a basis for mitigation); Eure
Family Limited Partnership, 17 FCC Rcd 21861 (2002) (licensee
responsible for actions of its employees).
51 See ACT III, 58 F.3d at 660-63.
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). The Commission recently amended its rules to increase
the maximum penalties to account for inflation since the last
adjustment of the penalty rates. The new rates apply to
violations that occur or continue after November 13, 2000. See
Order, In the Matter of Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000).
53 Forfeiture Policy Statement, 12 FCC Rcd at 1710-01, ¶ 27.
54 47 C.F.R. § 1.80.
55 See 47 C.F.R. § 1.1914.
56 Consistent with section 503(b) of the Act and consistent
Commission practice, for the purposes of the forfeiture
proceeding initiated by this NAL, Young shall be the only party
to this proceeding.