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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
AMFM RADIO LICENSES, L.L.C., ) File No. EB-03-IH-0121
) NAL/Acct. No. 200432080016
Licensee of Station ) FRN# 0001656586
WWDC(FM), Washington, DC ) Facility ID# 8682
)
)
CLEAR CHANNEL BROADCASTING ) File No. EB-03-IH-0736
LICENSES, INC., ) NAL/Acct. No.
200432080017
) FRN# 0001587971
Licensee of Station ) Facility ID# 11961
WRXL(FM), Richmond, Virginia )
)
)
CAPSTAR TX LIMITED ) File No. EB-03-IH-0737
PARTNERSHIP, ) NAL/Acct. No. 200432080018
) FRN# 0003474905
Licensee of Station ) Facility ID# 4674
WOSC(FM), Bethany Beach, Delaware )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 4, 2004 Released: March 12,
2004
By the Commission: Commissioner Martin concurring and issuing a
statement; Commissioner Adelstein issuing a statement; and
Commissioner Copps dissenting and issuing a statement.
I. INTRODUCTION
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 grant a complaint from
Stephen M. Arner2 and find that the captioned licensees, all of
which are subsidiaries of Clear Channel Communications, Inc.
(``Clear Channel''), apparently violated 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, by willfully and repeatedly broadcasting
indecent material over the stations on March 13, 2003. Based
upon our review of the facts and circumstances in this case and
Clear Channel's history of transgressions relating to the
broadcast of indecent material over stations licensed to its
subsidiaries, we conclude that Clear Channel is apparently liable
for a total monetary forfeiture in the amount of Two Hundred
Forty-Seven Thousand Five Hundred Dollars ($247,500), the
statutory maximum for the nine apparent violations at issue here.
II. BACKGROUND
2. The Commission received a complaint that Station
WWDC(FM), Washington, D.C., broadcast indecent material on March
13, 2003, at approximately 5:51 p.m. The complaint regarded
material that was apparently a clip rebroadcast from the program
``Elliot in the Morning,'' which was broadcast by three
subsidiaries of Clear Channel, (1) AMFM Radio Licenses, LLC
(``AMFM''), licensee of WWDC(FM), Washington, D.C., (2) Clear
Channel Broadcasting Licenses, Inc. (``CCBL''), licensee of
WRXL(FM), Richmond, Virginia, and (3) Capstar TX Limited
Partnership (``Capstar''), licensee of WOSC(FM), Bethany Beach,
Delaware. The complaint stated that the indecent material
included an ``on-air voice interviewing an unidentified person
and discussing the birthday of Ron Jeremy, a famous actor from
adult films'' and that when asked what the interviewee liked
about Jeremy she responded, ``The way he licks pussy.''3
3. On August 11, 2003, the Enforcement Bureau issued a
letter of inquiry (``LOI'') to AMFM, including the complaint as
Attachment A to the LOI.4 Clear Channel, the ultimate parent
company of AMFM, CCBL and Capstar, responded to the LOI.5 Clear
Channel confirmed that on March 13, 2003, at approximately 9:50
a.m., AMFM, CCBL and Capstar, broadcast the following language
during ``Dianne's Dirt of the Day'' segment on the ``Elliot in
the Morning'' program:
Diane's Voice: Finally porn legend Ron Jeremy is hitting the
half century mark.
Elliot's Voice: Oh, Happy Birthday Ron.
Diane's Voice: 50 years old today. Despite turning 50, Ron
Jeremy says he's still going strong in the sack and
continues to film sex scenes without needing Viagra. He
credits his good health to avoiding drugs for all these
years. And I figured what a better time than now to play
Craig's interview with one Ron Jeremy fan.
Female Voice: I masturbate with Jeremy's video every
day. Uh, not every day, but every other weekend.
Craig's Voice: Wow. What is it that you like about
him so much?
Female Voice: The way he licks pussy. I want to do a
threesome with him. See who's the best. If I can lick
better or he can lick better.
Diane's Voice: She is a looker.
Elliot's Voice: Hot. Got a great dental plan in her office.
This material was apparently rebroadcast on March 13, 2003 during
promotional segments on WWDC(FM) at approximately 12:50 and 5:50
p.m., on WRXL(FM) at approximately 1:40 and 6:40 p.m., and on
WOSC(FM) at approximately 12:50 and 7:50 p.m.6
III. DISCUSSION
4. 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.7 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.''8 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, consistent
with a subsequent statute and court decision,9 shall not
broadcast indecent material during the period 6 a.m. through 10
p.m.10
5. 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.11 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.12 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.13 As we set forth in
greater detail below, we conclude under this standard that Clear
Channel is apparently liable for forfeitures 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
6. Any consideration of government action against
allegedly indecent programming must take into account the fact
that such speech is protected under the First Amendment.14 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.15 Nevertheless, the First Amendment is a critical
constitutional limitation that demands that, in indecency
determinations, we proceed cautiously and with appropriate
restraint.16
7. 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.17
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.18
8. As an initial matter, Clear Channel does not dispute
that it aired material describing or depicting sexual and
excretory activities and organs.19 The material contained
discussions of the sexual performance of an adult film actor,
masturbation, group sex, and oral sex. Accordingly, we conclude
that the broadcasts satisfy the first prong of our indecency
analysis. The material, therefore, warrants further scrutiny to
determine whether or not it was patently offensive as measured by
contemporary community standards for the broadcast medium.20
9. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''21 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.22 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.''23 In particular cases,
the weight of one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive and
consequently indecent,24 or, alternatively, removing the
broadcast material from the realm of indecency.25 We turn now
to our analysis of the three principal factors in our decision.
10. First, the comments and dialogue carried on by the
program hosts and the Jeremy fan during the broadcasts contained
graphic and explicit references to sexual activities, including
repeated discussion of oral sex, group sex, masturbation and the
sexual performance of a ``porn legend.'' The Jeremy fan states
how frequently she ``masturbate[s] with Jeremy's video.'' She
states that she likes ``[t]he way he licks pussy. I want to do a
threesome with him [to see] if I can lick better or he can lick
better.'' To the extent that colloquial terms that the program
hosts and the Jeremy fan 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 terms was
``unmistakable.''26 Given the explicit references and the
graphic manner in which the broadcasts described the activities
of the subjects engaging in the purported sex acts, in particular
the reference to ``licking pussy,'' there is no non-sexual
meaning that a listener could possibly have attributed to these
terms.27 Clear Channel argues that the ``five isolated words,''
i.e., ``[t]he way he licks pussy,'' were not patently offensive.
Clear Channel ignores the full context of these words -- the
discussion of a ``porn legend'' not needing Viagra at age 50 to
perform in sex scenes; a female fan's masturbation practices
involving the adult film actor's videos; and the fan's desire to
have a group sex with the actor to determine who can perform
better oral sex. Therefore, we find that the broadcast at issue
described sexual activities through the use of direct references,
and/or innuendo that were sufficiently explicit or graphic to be
deemed patently offensive as measured by contemporary community
standards for the broadcast medium.
11. Second, the comments and dialogue carried on by
the program hosts and the Jeremy fan continuously focused on
sexual activities in graphic detail. The sexual discussion and
references were not fleeting or isolated. Rather, discussions
about and references to sexual activity pervaded the Jeremy
segment. Each of the three captioned Clear Channel stations not
only aired the Jeremy segment live, but rebroadcast the segment
two more times to promote the ``Elliot in the Morning'' program.
The sexual discussions and references were sufficiently dwelled
upon and repeated to constitute patently offensive material as
measured by contemporary standards for the broadcast medium.
12. Finally, several characteristics of the manner in which
the stations presented this material establish that the licensees
broadcast this material to pander to, titillate and/or shock
listeners. The interview with the Jeremy fan elicited specific
information regarding her sexual practices and desires, focusing
on the topics of masturbation, oral sex, and group sex in
particular. By broadcasting this interview, the program hosts
set out to pander to and to shock listeners. Further, the
broadcasts and rebroadcasts occurred at times when there was a
reasonable risk that children, whom the government has a
recognized and compelling interest to shield from indecent
material,28 would be in the audience. For these reasons, we find
that all of the March 13, 2003 broadcasts were patently offensive
as measured by contemporary community standards for the broadcast
medium.
13. Each of the Clear Channel entities broadcast and
rebroadcast the Jeremy segment between 6 a.m. and 10 p.m., at
times of day when the broadcast of indecent material is
explicitly prohibited by section 73.3999 of the Commission's
rules. Because the Jeremy segment appears to have contained
indecent speech and was broadcast at times of the day when
indecent speech is prohibited, each of the broadcasts and
rebroadcasts is legally actionable. We therefore find that each
of the three captioned stations (Stations WWDC(FM), WRXL(FM), and
WOSC(FM)) each broadcast three apparently indecent segments, in
apparent and willful violation of 18 U.S.C. § 1464 and section
73.3999 of the Commission's rules.
B. Proposed Forfeiture
14. Based upon our review of the record in this case, we
conclude that Clear Channel is apparently liable for forfeitures
for willful and repeated violations of our rules for broadcasting
indecent material over Stations WWDC(FM), WRXL(FM) and WOSC(FM).
The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $7,000.00 for transmission of indecent
materials.29 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.''30 In this case, taking all of these factors into
consideration, we find that Clear Channel is apparently liable
for forfeitures reflecting the proposed imposition of the
statutory maximum of $27,500 for each broadcast and rebroadcast
of apparently indecent material over Stations WWDC(FM), WRXL(FM)
and WOSC(FM). Each station broadcast the apparently indecent
material three times for a total of nine times. Accordingly,
Clear Channel is apparently liable for a total monetary
forfeiture in the amount of Two Hundred Forty-Seven Thousand Five
Hundred Dollars ($247,500), which represents $27,500 for each of
the nine apparent violations at issue. Based upon our review of
the entire record, we believe that this upward adjustment to the
statutory maximum is warranted. There is a recent history of
indecent broadcasts on stations controlled by Clear Channel,
which justifies imposition of the maximum forfeiture amount.31
We reiterate our recent statement that multiple serious
violations of our indecency rule by broadcasters for broadcasts
after our April 2003 warning may well lead to license revocation
proceedings.32 Furthermore, separate indecent utterances within
a program segment may be separately actionable.
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,33 that Clear Channel Communications,
Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE
in the amount of Two Hundred Forty-Seven Thousand Five Hundred
Dollars ($247,500) for willfully and repeatedly violating 18
U.S.C. § 1464 and section 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 the release
of this Notice, Clear Channel Communications, Inc. 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 forfeitures 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 Numbers (``FRN'') referenced above and also
should note the NAL/Account Numbers referenced above.
18. The responses, 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. Nos. 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, S.W., Washington, D.C. 20554.34
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 you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Investigations and Hearings
Division. Your certification should indicate whether you,
including your 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. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
22. Accordingly, IT IS ORDERED, that the complaint
filed against Station WWDC-FM's broadcast of March 13, 2003,
IS GRANTED, and the complaint proceeding IS HEREBY
TERMINATED.
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 Richard W.
Wolf, Vice President, Clear Channel Communications Inc., 200
East Basse Road, San Antonio, TX 78209-8328; Troy G.
Langham, FCC Specialist, Clear Channel Communications Inc.,
2625 S. Memorial Drive, Suite A, Tulsa, OK 74129; Capstar TX
Limited Partnership, FCC Contact, 600 Congress Ave., Suite
1400, Austin, TX 78701.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Attachment A
FCC List of Small Entities October 2002
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)
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: AMFM Radio Licenses, L.L.C., Licensee of Station WWDC-FM,
Washington, D.C;, Clear Channel Broadcasting Licenses, Inc.,
Licensee of Station WRXL(FM), Richmond, Virginia; Capstar TX
Limited Partnership, Licensee of Station WOSC(FM), Bethany Beach,
Delaware; Notice of Apparent Liability for Forfeiture
In this case, three Clear Channel stations aired graphic and
explicit sexual content on nine different occasions -- including
the use of sexual material in promotional rebroadcasts. Clear
Channel has been the subject of repeated indecency actions at the
FCC, and this show in particular has been the subject of previous
complaints. Yet, notwithstanding the repeated nature of Clear
Channel's transgressions, the majority proposes a mere $27,500
fine for each incident. Such a ``cost of doing business fine''
is never going to stop the media's slide to the bottom.
For repeat offenders as in this case, I believe the
Commission should have designated these cases for license
revocation hearings. I recognize that Clear Channel has taken
some steps in recent days to address indecency on its stations.
A hearing would have provided the Commission with the ability to
consider what actions the stations took in response to these
broadcasts and to decide on the appropriate penalty.
I am discouraged that my colleagues would not join me in
taking a firm stand here against indecency on the airwaves. The
time has come for the Commission to send a message that it is
serious about enforcing the indecency laws of our country. That
message has yet to go forth. CONCURRING STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: AMFM Radio Licenses, L.L.C., Licensee of Station
WWDC(FM), Washington, DC; Clear Channel Broadcasting
Licenses, Inc., Licensee of Station WRXL(FM), Richmond,
Virginia; Capstar TX Limited Partnership, Licensee of
Station WOSC(FM), Bethany Beach, Delaware; Notice of
Apparent Liability for Forfeiture
Consistent with my past statements, I believe we should be
fining broadcasters on a ``per utterance'' basis.35 I also
believe that, when determining the amount of fine, we should take
into consideration the circumstances and actions of the
particular broadcaster. Unlike some broadcasters, Clear Channel
recently has agreed to pay an unprecedented fine, without
contest, for past indecency violations. In addition, it has
announced a comprehensive policy to reduce the likelihood that
indecent broadcasts occur. Indeed, it has already taken steps to
implement its ``zero-tolerance'' policy. We also should take
such steps into consideration. STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: AMFM Radio Licenses, L.L.C., Licensee of Station
WWDC(FM), Washington, DC; Clear Channel Broadcasting
Licenses, Inc., Licensee of Station WRXL(FM), Richmond,
Virginia; Capstar TX Limited Partnership, Licensee of
Station WOSC(FM), Bethany Beach, Delaware; Notice of
Apparent Liability for Forfeiture
I support this Notice of Apparent Liability for the
broadcast of indecent material at a time when children may be in
the audience. By issuing this NAL, we step up to our
responsibility to enforce statutory and regulatory provisions
restricting broadcast indecency. Once again, we impose statutory
maximum fines and remind broadcasters that the Commission can and
will avail itself of a range of enforcement sanctions, including
acting on each separate indecent utterance, or initiating
proceedings that could result in the revocation of station
licenses for serious, repeated violations.
Since I arrived at the Commission, we have greatly stepped
up our enforcement against indecent broadcasts. I expect that
these stepped-up actions will convince broadcasters that they
cannot ignore their responsibility to serve the public interest
and to avoid the broadcast of indecent material over the public
airwaves. Indeed, Clear Channel has recently taken steps to show
that it is meeting this obligation, including the payment of an
unprecedented fine without objection for a past indecency
violation.
_________________________
1 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).
2 See Letter from Stephen M. Arner to Federal Communications
Commission, Enforcement Bureau, Investigations and Hearings
Division, dated March 17, 2003 (``Complaint Letter'').
3 Complaint Letter at 1.
4 See Letter from Maureen F. Del Duca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission to AMFM Radio Licenses, L.L.C., dated August 11, 2003
(``LOI'').
5 See Letter from Richard W. Wolf, Vice President, Clear Channel
Communications, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated August 29, 2003 (``Clear Channel
Response to Inquiry''). Clear Channel enclosed with its response
to the LOI a compact disc recording of the material broadcast at
approximately 9:50 a.m. on March 13, 2003.
6 In its response to the LOI , Clear Channel states that it
rebroadcast the material in Attachment A to the LOI, i.e., the
Complaint Letter, which described the interview with the Jeremy
fan and specifically referenced the words, ``[t]he way he licks
pussy.'' Clear Channel also states that its program promotions
are approximately one minute in length, which is the approximate
duration of the entire segment concerning Jeremy. See Clear
Channel Response to Inquiry at 1-2.
7 See 47 U.S.C. § 326.
8 18 U.S.C. § 1464.
9 Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
Stat. 949 (1992) (setting the current safe harbor of 10 p.m. to 6
a.m. for the broadcast of indecent material); see also Action for
Children's Television v. FCC, 58 F. 3d 654 (D.C. Cir. 1995) (en
banc), cert. denied, 516 U.S. 1072 (1996) (``ACT III'')
(affirming restrictions prohibiting the transmission of indecent
material between the hours of 6 a.m. and 10 p.m.).
10 See 47 C.F.R. § 73.3999.
11 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.
12 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
13 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
(forfeiture paid).
14 U.S. CONST., amend. I; see Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
15 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''); ACT III, 58 F. 3d at 657.
16 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 id. at 1340 n.14 (`` . . . the potential
chilling effect of the FCC's generic definition of indecency will
be tempered by the Commission's restrained enforcement
policy.'').
17 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)).
18 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶¶ 7-8
(emphasis in original).
19 See Clear Channel Response to Inquiry at 3 (arguing that the
material was ``brief and fleeting, not presented in a pandering
fashion, and certainly not expressed in terms sufficiently
graphic or explicit enough to be considered patently
offensive.'')
20 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 16
FCC Rcd at 8002, ¶ 8 and n. 15.
21 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis
in original).
22 Id. at 8002-15, ¶¶ 8-23.
23 Id. at 8003, ¶ 10.
24 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);
see also Indecency Policy Statement, 16 FCC Rcd at 8009, ¶ 19
(citing LBJS Broadcasting Company, L.P. (KLBJ(FM)), 13 FCC Rcd
20956 (MMB 1998) (forfeiture paid) (brief statement ``suck my
dick you fucking cunt'' found indecent due to explicit nature).
``The more explicit or graphic the description or depiction, the
greater the likelihood that the material will be considered
patently offensive.'' Indecency Policy Statement, 16 FCC Rcd at
8003, ¶ 12, 13 (citing WQAM License Limited Partnership
(WQAM(AM)), 15 FCC Rcd 1475 (1999), a'ffd 15 FCC Rcd 2518 (2000),
recon. denied, 15 FCC Rcd 13549 (song including lyrics ``[y]ou'll
have more fun when I make you come, with my nose between your
thighs'' found indecent by Commission because ``song's sexual
import is lewd, inescapable and understandable'').
25 Indecency Policy Statement, 16 FCC Rcd 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'').
26 See Indecency Policy Statement, 16 FCC Rcd at 8003-04, ¶ 12;
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).
27 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873, 6874
(1972) (subsequent history omitted).
28 See ACT III, 58 F.3d at 660-63.
29 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).
30 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶ 27.
31 Clear Channel Broadcasting Licenses, Inc., FCC 04-17 (Jan. 27,
2004); AMFM Radio Licenses, LLC (WWDC(FM)), FCC 03-233 (Oct. 2,
2003) (forfeiture paid) (indecent broadcast involving the
``Elliot in the Morning'' program); Citicasters Co. (KEGL(FM)),
16 FCC Rcd 7546 (EB 2001) (forfeiture paid); Citicasters Co.
(WXTB(FM)), 15 RCC Rcd 25,453 (2000) (forfeiture paid);
Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19,095 (EB 2000)
(forfeiture paid); Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19091
(EB 2000) (forfeiture paid); Citicasters Co. (WXTB(FM)), 15 FCC
Rcd 11,906 (2000) (forfeiture paid).
32 See Infinity Broadcasting NAL(WKRK-FM), 18 FCC Rcd 6915, 6919,
¶ 13 (2003); Forfeiture Order, FCC 03-302, rel. Dec. 8, 2003; see
also AMFM FM Radio Licenses LLC (WWDC(FM)), 2003 WL 22251146
(2003) (forfeiture paid). We note that the misconduct at issue
here before us occurred prior to our warning regarding possible
revocation proceedings.
33 47 C.F.R. § 1.80.
34 See 47 C.F.R. § 1.1914.
35 See, e.g., Separate Statement of Commissioner Martin, Infinity
Broadcasting Operations, Inc., Licensee of Station WKRK-FM,
Detroit, Michigan, Notice of Apparent Liability, 18 FCC Rcd.
6915, 6939 (2003) (urging the Commission to fine violators ``per
utterance'').