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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-00-IH-0228
)
Citadel Broadcasting Company ) NAL/Acct. No.
200132080057
) Facility ID #11229
Licensee of Station KKMG(FM), )
Pueblo, Colorado )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 31, 2001 Released: June 1,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Citadel Broadcasting Company
(``Citadel''), licensee of Station KKMG(FM), Pueblo,
Colorado, has apparently violated 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules, 47 C.F.R. §
73.3999, by willfully broadcasting indecent language. Based
on our review of the facts and circumstances in this case,
we conclude that Citadel is apparently liable for a monetary
forfeiture in the amount of Seven Thousand Dollars
($7,000.00).
II. BACKGROUND
2. The Commission received a complaint dated July 18,
2000, concerning repeated broadcasts of a song entitled
``The Real Slim Shady'' on Station KKMG(FM). The complaint
included lyrics that the complainant contends are offensive.
After reviewing the lyrics, we issued a letter of inquiry to
the licensee.
3. In its response, Citadel admits that it broadcast
``The Real Slim Shady'' on a ``constant basis on or about
July 18, 2000,''1 but denies that it aired the version
quoted by the complainant. Citadel claims that the station
actually broadcast a ``radio edit'' version that omitted
certain offensive language through the use of a muting
device or overdubbed sound effect.2 Citadel submitted a
copy of the edited lyrics that it claims the station
actually broadcast and argues that those lyrics are not
indecent.
III. DISCUSSION
4. Section 503(b)(1) of the Communications Act (the
``Act'') 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. § 1464 provides criminal penalties for anyone who
``utters any obscene, indecent or profane language by means
of radio communication.'' As explained below, we believe
even that the version of ``The Real Slim Shady'' that
Citadel claims to have broadcast over KKMG(FM) contains
indecent material and that the licensee's broadcast thereof
was willful and repeated.
5. 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).
6. After carefully considering the record before us,
it appears that Citadel violated our indecency rule with
respect to the broadcast of the edited version of ``The Real
Slim Shady.'' Moreover, Citadel does not claim that its
broadcast of the song was limited to the time period of 10
p.m. until 6 a.m. The edited version of the song contains
unmistakable offensive sexual references. In this regard,
portions of the lyrics contain sexual references in
conjunction with sexual expletives that appear intended to
pander and shock. See Attachment. As we have previously
explained, ``the context in which material is offered is
essential to making a determination as to whether material
is indecent.'' See In the Matter of Industry Guidance On
the Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency
(``Indecency Policy Statement''), ___ FCC Rcd ___ at para. 9
(FCC 01-90, released April 6, 2001), citing WPBN/WTOM
License Subsidiary, Inc., 15 FCC Rcd 1838, 1841 (2000).
Moreover, unlike the news story concerning organized crime
boss, John Gotti, there is nothing about the context of
``The Real Slim Shady'' which removes the material from the
realm of indecency.3 In sum, the lyrics the licensee admits
were aired are inappropriate for broadcast during times when
children may be in the audience. The Commission previously
has found similar material to be indecent,4 and we see no
basis for finding otherwise in this case.
7. We find also that the broadcast of the edited
version of ``The Real Slim Shady'' was willful and repeated.
Citadel does not dispute that the song was played repeatedly
throughout the spring and summer months of 2000. Although
Citadel contends that it attempted to render the song
suitable for broadcast through editing, we believe that the
licensee failed to purge a number of indecent references.
8. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
Section 1.80 of the Commission's rules, 47 C.F.R. § 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 Section
503(b) of the Act, the term ``willful'' means that the
violator knew that it was taking the general action in
question, without regard to any specific intent to violate
the Commission's rules.5 As explained above, Citadel knew
that KKMG(FM) was broadcasting ``The Real Slim Shady.'' In
assessing a monetary forfeiture, we take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Act. Those factors include 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
9. The Commission's Forfeiture Guidelines set a base
forfeiture amount of $7,000 for transmission of indecent or
obscene materials.7 After considering all the facts and
circumstances, we believe the base forfeiture amount is the
appropriate sanction and that neither an upward nor downward
adjustment should be made.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Commission's rules,9 Citadel Broadcasting
Company is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of Seven Thousand Dollars
($7,000.00) for willfully violating the 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules.
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's rules,10 within thirty days of this
NOTICE OF APPARENT LIABILITY, Citadel Broadcasting Company
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. 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.
13. The response, if any, must be mailed to the
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.
14. 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.
15. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Credit and Debt Management Center,
445 12th Street, S.W., Washington, D.C. 20554.11
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail --
Return Receipt Requested to Elizabeth E. Goldin, Esq.,
Counsel for Citadel Broadcasting Company, 1776 K Street,
N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT
Radio Station: KKMG(FM), Pueblo, Colorado
Date/Time Broadcast: May through July 2000
Material Broadcast: ``The Real Slim Shady'' (excerpts from
song lyrics)
Various voices, including the recording artist, Eminem:
Feminist women love Eminem
(Eminem's vocal turntable sound effect: ``sicka sicka
sicka'') Slim Shady, I'm sick of him
Look at him, walking around grabbin' his you know what,
flippin' the you know who
``Yeah, but he's so cute, though''
Yeah, probably got a couple of screws up in my head loose
But the worse is what's going on in your parents' bedroom
Sometimes I want to get on TV and just let loose, but can't
But it's cool for Tom Green to hump a dead moose:
``My bum is on your lips
My bum is on your lips''
And if I'm lucky you might just give it a little kiss
And that's the message we deliver to little kids
And expect them not to know what a woman's BLEEP is
Of course, they're gonna know what intercourse is
by the time they hit fourth grade
They got the Discovery Channel, don't they?
``We ain't nothin' but mammals''
Well, some of us cannibals
* * * * * * * * * *
It's funny cause at the rate I'm goin'
When I'm 30 I'll be the only person in the nursing home
flirting
Pinching nurses asses when I'm BLEEP or jerkin'
Said I'm jerkin' but this whole bag of Viagra isn't workin'
_________________________
1 Citadel admits that it broadcast the song approximately
408 times during the period May through July 2000.
2 Citadel contends that the complainant did not transcribe
those lyrics from the actual broadcast, but instead
retrieved them from an Internet website.
3 See Peter Branton, 6 FCC Rcd 610 (1991) (subsequent
history omitted).
4 See, e.g., WQAM License Limited Partnership, 15 FCC Rcd
2518, recon. denied, 15 FCC Rcd 15349 (2000) (``The Girl
from Ipanema'' parody).
5 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999) recon.
denied, 14 FCC Rcd 20147 (1999) petition for review pending
sub nom. Grid Radio and Jerry Szoka v. FCC, No. 99-1463
(D.C. Cir. November 17, 1999); Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
6 47 U.S.C. § 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, supra note 3, 12 FCC Rcd at 17113.
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.