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

In the Matter of )
) File No. EB-00-IHD-0079
The KBOO Foundation ) NAL/Acct. No.
200132080056
) Facility ID # 65755
Licensee of Noncommercial Educational )
Station KBOO-FM, Portland, OR )

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: May 14, 2001 Released: May 17,
2001

By the Chief, Enforcement Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that The KBOO Foundation,
licensee of noncommercial Station KBOO-FM, Portland, Oregon,
apparently violated 18 U.S.C. з 1464 and 47 C.F.R. з
73.3999, by willfully broadcasting indecent language. Based
on our review of the facts and circumstances in this case,
we conclude that The KBOO Foundation is apparently liable
for a forfeiture in the amount of seven thousand dollars
($7,000).

II. BACKGROUND

2. The Commission received a complaint alleging that
KBOO-FM broadcast indecent material on October 20, 1999
between 7:00 p.m. and 9:00 p.m. during the ``Soundbox.''
The complainant submitted a tape containing allegedly
indecent material that aired on the ``Soundbox'' on this
date. After reviewing the complainant's tape, we issued a
letter of inquiry to the licensee.

3. In its response, The KBOO Foundation argues that
the material is not indecent, and that no sanction is
warranted. In this regard, The KBOO Foundation states that
the ``Soundbox'' program features contemporary rap and hip
hop music often structured around themes that provide a
larger social or cultural context, to explore, for example,
topics such as ``violence, racial oppression or the judicial
system.'' The KBOO Foundation asserts that it ``broadcasts
rap and hip hop music not to achieve commercial success, but
to fulfill its mission of `providing a forum for unpopular,
controversial neglected perspective on important local,
national, and international issues,''' and to ``reflect the
diverse cultures we serve.'' The KBOO Foundation also has
supplemented its response by submitting declarations of the
author of the lyrics of the allegedly indecent song cited in
the complaint and of a professor at a local university.
These declarations are offered in support of The KBOO
Foundation's argument that, in context, the material
allegedly broadcast on KBOO-FM is not indecent. In
addition, The KBOO Foundation states that it provides
training to its local programmers, most of whom are unpaid
volunteers, concerning the Commission's rules and the
station's policies, including its prohibitions against the
broadcast of indecent material. The KBOO Foundation
supplement also includes a petition signed by listeners who
support the ``Soundbox.''

4. The KBOO Foundation asserts, in the alternative,
that the complaint should be dismissed based on the amount
of time that has elapsed since the allegedly indecent
material was broadcast. The KBOO Foundation states that it
cannot determine with certainty whether it aired the
allegedly indecent material cited in our letter of inquiry.
However, The KBOO Foundation has determined that its music
library contains the song ``Your Revolution'' that was
excerpted in our letter of inquiry.

III. DISCUSSION

5. Section 503(b)(1) of the Communications Act (the
``Act''), 47 U.S.C. з 503(b)(1), provides in pertinent part:

Any person who is determined by the
Commission, in accordance with paragraph (3)
or (4) of this subsection to have ---
...
(D) violated any provision of section 1304,
1343, or 1464 of title 18, United States
Code;
shall be liable to the United States for a
forfeiture penalty.

18 U.S.C. з 1464 provides criminal penalties for anyone who
``utters any obscene, indecent or profane language by means
of radio communication.'' As explained below, we believe
that ``Your Revolution'' contains indecent material and that
the licensee's broadcast thereof was willful.

6. The Commission has defined indecent speech as
language that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987) (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). The Commission's authority to restrict the
broadcast of indecent material extends to times when there
is a reasonable risk that children may be in the audience.
Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.
Cir. 1988). Current law holds that such times begin at 6
a.m. and conclude at 10 p.m. Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S.Ct. 701 (1996). Thus, to be actionably
indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and
before 10 p.m. See 47 C.F.R. з 73.3999.

7. After carefully considering the record before us,
it appears that KBOO-FM has willfully violated our indecency
rule with respect to the broadcast of ``Your Revolution.''
The KBOO Foundation points to the length of time that has
elapsed since the broadcast that is the subject of the
complaint, and argues that it cannot determine whether the
song aired on the date and time alleged, or whether it might
have aired an edited version of the song. In this regard,
the station does not possess tapes or transcripts of the
``Soundbox'' for the date in question. However, the KBOO
Foundation does not claim that tapes or transcripts are
generated and retained, or that this material would have
been available earlier. The KBOO Foundation acknowledges
that the station's music library contains the song, and has
provided a transcript of the lyrics of ``Your Revolution.''
Although the KBOO Foundation asserts that an edited version
of the song may have been broadcast, it does not indicate
that the station possesses such an edited version of ``Your
Revolution.'' Moreover, the tape of the October 20, 1999
``Soundbox'' submitted by the complainant contains the
unedited version of ``Your Revolution,'' which corresponds
to the transcription included in The KBOO Foundation's
response.

8. The rap song ``Your Revolution'' contains
unmistakable patently offensive sexual references. We have
considered The KBOO Foundation's arguments concerning the
context of this material. Specifically, the KBOO Foundation
asserts that the rap song ``Your Revolution'' cannot be
separated from its contemporary cultural context. In the
alternative, The KBOO Foundation argues that even if context
is limited to the song's lyrics, ``Your Revolution'' is ``a
feminist attack on male attempts to equate political
`revolution' with promiscuous sex'' and as such, is not
indecent. However, considering the entire song, the sexual
references appear to be designed to pander and shock and are
patently offensive. In this regard, we reject The KBOO
Foundation's argument that it is erroneous, as a matter of
law, to find that the song is indecent without considering
the artistic merit of the rap music genre. Merit is one of
the variables that are part of the material's context, and
the Commission has rejected an approach to indecency that
would hold that material is not per se indecent if the
material has merit.1 The contemporary social commentary in
``Your Revolution'' is a relevant contextual consideration,
but is not in itself dispositive.2 The Commission
previously has found similar material to be indecent, and we
see no basis for finding otherwise in this case.3 In
addition, although The KBOO Foundation has submitted a
petition signed by listeners who support the ``Soundbox,''
we have previously ruled that neither the statute nor our
case law permits a broadcaster to air indecent material
merely because it is popular.4

9. Section 503(b) of the Act and 47 C.F.R. з 1.80
both state that any person who willfully or repeatedly fails
to comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of 47 U.S.C.
з 503(b), the term ``willful'' means that the violator knew
that it was taking the action in question, irrespective of
any intent to violate the Commission's rules.5 In assessing
a forfeiture, we take into account 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.6

10. The Commission's Forfeiture Guidelines set a
base forfeiture amount of $7,000 for transmission of
indecent material.7 After considering all the facts and
circumstances, we believe the base forfeiture amount is the
appropriate sanction for the violation described above and
that neither an upward nor downward adjustment should be
made.

IV. ORDERING CLAUSES

11. Accordingly, IT IS ORDERED THAT, pursuant to 47
U.S.C. з 503(b), and 47 C.F.R. зз 0.111, 0.311 and 1.80, The
KBOO Foundation is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of seven thousand dollars
($7,000) for willfully violating 18 U.S.C. з 1464 and 47
C.F.R. з 73.3999.

12. IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R.
з 1.80, within thirty days of this NOTICE OF APPARENT
LIABILITY, The KBOO Foundation SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.

13. 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 should note the NAL/Acct. No. referenced above.

14. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Room 3-B443, Washington, D.C. 20554 and
MUST INCLUDE THE NAL/Acct. No. referenced above.

15. 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.

16. 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. 20554.8

17. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to: The KBOO Foundation,20 S.E. 8th Ave., Portland, Oregon 97214; with a copy to its
counsel, John Crigler, Esq., Garvey, Schubert & Barer, 1000
Potomac Street, N.W., Washington, DC 20007.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon
Chief, Enforcement Bureau

ATTACHMENT

Radio Station: KBOO-FM, Portland, Oregon
Date/Time Broadcast: October 20, 1999, on the
``Soundbox,'' between 7:00 p.m. and 9:00 p.m.
Material Broadcast: ``Your Revolution''

(Various female voices)

Your revolution will not happen between these thighs
Your revolution will not happen between these thighs
Your revolution will not happen between these thighs
Will not happen between these thighs
Will not happen between these thighs
The real revolution ain't about bootie size
The Versaces you buys
Or the Lexus you drives
And though we've lost Biggie Smalls
Maybe your notorious revolution
Will never allow you to lace no lyrical douche in my bush
Your revolution will not be you killing me softly with

fujees
Your revolution ain't gonna knock me up without no ring
And produce little future M.C.'s
Because that revolution will not happen between these thighs
Your revolution will not find me in the back seat of a jeep
With L.L. hard as hell, you know
Doing it and doing and doing it well, you know
Doing it and doing it and doing it well
Your revolution will not be you smacking it up, flipping it

or rubbing it down
Nor will it take you downtown, or humping around
Because that revolution will not happen between these thighs
Your revolution will not have me singing
Ain't no nigger like the one I got
Your revolution will not be you sending me for no drip drip

V.D. shot
Your revolution will not involve me or feeling your nature

rise
Or having you fantasize
Because that revolution will not happen between these thighs
No no not between these thighs
Uh-uh
My Jamaican brother
Your revolution will not make you feel bombastic, and really

fantastic
And have you groping in the dark for that rubber wrapped in

plastic
Uh-uh
You will not be touching your lips to my triple dip of
French vanilla, butter pecan, chocolate deluxe
Or having Akinyele's dream, um hum
A six foot blow job machine, um hum
You wanna subjugate your Queen, uh-huh
Think I'm gonna put it in my mouth just because you
Made a few bucks,
Please brother please
Your revolution will not be me tossing my weave
And making me believe I'm some caviar eating ghetto
Mafia clown
Or me giving up my behind
Just so I can get signed
And maybe have somebody else write my rhymes
I'm Sarah Jones
Not Foxy Brown
You know I'm Sarah Jones
Not Foxy Brown
Your revolution makes me wonder
Where could we go
If we could drop the empty pursuit of props and the ego
We'd revolt back to our roots
Use a little common sense on a quest to make love
De la soul, no pretense, but
Your revolution will not be you flexing your little sex and

status
To express what you feel
Your revolution will not happen between these thighs
Will not happen between these thighs
Will not be you shaking
And me, [sigh] faking between these thighs
Because the real revolution
That's right, I said the real revolution
You know, I'm talking about the revolution
When it comes,
It's gonna be real
It's gonna be real
It's gonna be real
When it finally comes
It's gonna be real
_________________________

1 See Infinity Broadcasting Corporation of Pennsylvania,
Memorandum Opinion and Order on Reconsideration, 3 FCC Rcd
930, 932 (1987).

2 Id at 932-33. The KBOO Foundation cites a case decided
under Florida's criminal obscenity statute as support for
its argument that material with artistic merit is not
indecent. Luke Records, Inc. v. Navarro, 960 F.2d 134
(11th Cir. 1992), cert. denied, Navarro v. Luke Records,
Inc., 506 U.S. 1022 (1992). The court's determination that
a lower court had not properly applied the tripartite
obscenity standard of Miller v. California, 413 U.S. 15
(1973), does not control our indecency analysis here.

3 See Capstar TX Limited Partnership (WZEE(FM)), 16 FCC
Rcd 901 (EB 2001); CBS Radio License, Inc. (WLLD(FM)), 15
FCC Rcd 23881(EB 2000)(Notice of Apparent Liability for
Forfeiture), DA 01-537 (EB Mar. 2, 2001)(Forfeiture Order).

4 See, e.g., CBS Radio License, Inc. (WLLD(FM)), supra.

5 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).

6 47 U.S.C. з 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Guidelines'').

7 Forfeiture Guidelines, 12 FCC Rcd at 17113.

8 See 47 C.F.R. з 1.1914.