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

In the Matter of              )    
                              )
Entercom Buffalo              )    File No. EB-00-IH-0221
License, LLC                  )
                              )    Facility ID # 56101
Licensee of Station WGR(AM),  )    
Buffalo, New York             )    

                            ORDER

     Adopted: June 27, 2002             Released:  June  28, 
2002

By the Chief, Enforcement Bureau:

     1.   In this Order, we deny Complainant Michael P. 
Palko's petition for reconsideration of the Enforcement 
Bureau staff's dismissal of a complaint in which Mr. Palko 
alleged that Entercom Buffalo License, L.L.C. 
(``Entercom''), licensee of WGR(AM), Buffalo, New York 
(``WGR'') broadcast indecent material.

                         BACKGROUND

     2.   On May 8, 2000, Mr. Palko filed a complaint in 
which he alleged that station WGR had broadcast indecent 
material in two instances.  Mr. Palko alleged that WGR's 
morning program co-hosts, in conjunction with the station's 
distribution of urinal splash guards decorated with emblems 
of National Hockey League (``NHL'') teams to local bars and 
restaurants, repeatedly stated that they wanted to ``piss 
on'' teams, players and the Commissioner of the NHL.  Mr. 
Palko also alleged that the hosts would invite listeners to 
call the station to talk about who in the NHL they would 
``piss on.''  Although Mr. Palko failed to provide the time 
during which these allegedly indecent remarks were made, he 
did state that these statements continued as late as 9:45 
a.m. on May 8, 2000.  In the second instance, Mr. Palko 
alleged that WGR broadcast additional indecent material on 
May 8, 2000 when one of the hosts, in response to a 
listener's question as to whether the listener could say a 
specific phrase on the air, told the listener:  ``you can 
say prick on the air, you can even call someone a sawed-off 
little prick on the air.''  Mr. Palko claimed that the host 
``used the word a few more times for effect.''

     3.   By letter dated February 23, 2001, the Enforcement 
Bureau's Investigations and Hearings Division (``IHD'') 
dismissed Mr. Palko's complaint, finding that WGR did not 
broadcast descriptions of sexual or excretory activities or 
organs in a patently offensive manner.  On March 13, 2001, 
Mr. Palko sent a letter asking IHD to review the decision 
not to take enforcement action and requesting that this 
letter be treated as a petition for reconsideration.1  IHD 
then sent an inquiry letter to Entercom directing it to 
provide information about whether WGR broadcast the 
aforementioned material.  It also directed Entercom to 
provide a recording of the alleged broadcast, if one 
existed.  Entercom responded by letter dated June 26, 2001.  
On November 16, 2001, IHD sent Mr. Palko a copy of 
Entercom's response and provided him with an opportunity to 
comment further.  Mr. Palko responded by letter dated 
December 11, 2001.  After reviewing the entire record in 
this matter, we conclude that there is not sufficient 
information to demonstrate that Entercom broadcast 
apparently indecent material as alleged.

                         DISCUSSION

     4.   It is a violation of federal law to broadcast 
obscene or indecent programming.  Specifically, 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.''  
Congress has given the Federal Communications Commission the 
responsibility for administratively enforcing 18 U.S.C. § 
1464.  In doing so, the Commission may, among other things, 
impose a monetary forfeiture, pursuant to Section 503(b)(1) 
of the Communications Act (the ``Act''), 47 U.S.C. § 
503(b)(1), for broadcast of indecent material in violation 
of 18 U.S.C. § 1464.  Federal courts have upheld Congress's 
authority to regulate obscene speech and, to a limited 
extent, indecent speech.  Specifically, the U.S. Supreme 
Court has determined that obscene speech is not entitled to 
First Amendment protection.  Accordingly, Congress may 
prohibit the broadcast of obscene speech at any time.2  In 
contrast, federal courts have held that indecent speech is 
protected by the First Amendment.3  Nonetheless, the federal 
courts consistently have upheld Congress's authority to 
regulate the broadcast of indecent speech, as well as the 
Commission's interpretation and implementation of the 
statute.4  However, the First Amendment is a critical 
constitutional limitation that demands we proceed cautiously 
and with appropriate restraint.5  Consistent with a 
subsequent statute and case law,6 under the Commission's 
rules, no radio or television licensee shall broadcast 
obscene material at any time, or broadcast indecent material 
during the period 6 a.m. through 10 p.m.7

     5.   In enforcing its indecency rule, the Commission 
has defined indecent speech as language that first, in 
context, depicts or describes sexual organs or activities.  
Second, the broadcast must be ``patently offensive as 
measured by contemporary community standards for the 
broadcast medium.''8  This definition has been specifically 
upheld by the federal courts.9  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.10  As noted above, current law holds that 
such times begin at 6 a.m. and conclude at 10 p.m.11

     6.   The Commission's indecency enforcement is based on 
complaints from the public.  Once a complaint is before the 
Commission, we evaluate the facts of the particular case and 
apply the standards developed through Commission case law 
and upheld by the courts.12  ``Given the sensitive nature of 
these cases and the critical role of context in an indecency 
determination, it is important that the Commission be 
afforded as full a record as possible to evaluate 
allegations of indecent programming.''13  In evaluating the 
record to determine whether the complained of material is 
patently offensive, three factors are particularly relevant: 
(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.14  As discussed below, we find that 
Entercom did not broadcast indecent material in violation of 
the Commission's Rules.

     7.   We first decline to find that Entercom broadcast 
indecent material in violation of the Commission's rules 
when WGR allegedly broadcast the word ``prick.''  According 
to Mr. Palko's complaint, the hosts were responding to a 
listener's questions as to what could be said on the radio.  
Specifically, the hosts told the listener that ``you can say 
prick on the air, you can even call someone a sawed-off 
little prick on the air.''  In this context, the word 
``prick'' was not used ``to describe or depict'' a sexual 
activity or organ, but was instead used as a vulgar insult.  
As the Commission previously stated, the use of a specific 
word, in and of itself, is not sufficient to demonstrate 
that a station has aired indecent material.15  We therefore 
decline to find that Entercom's broadcast of the word 
``prick'' in this circumstance violated the Commission's 
rules.

     8.   Mr. Palko also alleged that the WGR hosts 
regularly stated that they wanted to ``piss on'' numerous 
individuals and that they invited listeners to call in and 
declare whom they would most like to ``piss on.''  In the 
complaint, Mr. Palko claimed that the hosts ``regularly talk 
about who they would `piss on' and callers were invited to 
call in to talk about who in the NHL they would `piss on.'''  
He also asserted that the hosts regularly discuss ``pissing 
on'' the NHL Commissioner and that this continued as late as 
May 8, 2000.  In his December 11, 2001 letter, Mr. Palko 
reiterated this allegation and stated that the hosts ``were 
discussing specifically of urinating on individuals'' and 
pointed to the station's distribution of urinal splash 
guards as proof of this allegation.

     9.   Entercom disputes Mr. Palko's allegations.  In 
declarations attached to its response, both hosts explain 
that, in the spring of 2000, they were promoting a 
demonstration designed to express their displeasure with the 
NHL.  They came up with the idea to label urinal splash 
guards with the letters ``NHL'' and then give them away to 
local restaurants and bars.  The hosts then promoted this 
give-away on the air.  The hosts explain in their 
declarations that they do not recall promoting the splash 
guards on May 8, 2000 (the only date listed in Mr. Palko's 
complaint) or regularly discussing ``pissing on'' 
individuals.  Entercom does admit, however, that the hosts 
used the word ``piss'' at some unknown time during a 
broadcast while they were promoting the urinal splash guard 
giveaway and that the hosts discussed being ``pissed off'' 
or ``pissed at'' the NHL and the NHL's Commissioner.  The 
hosts do not recall encouraging listeners to call in and 
suggest names of people whom they want to ``piss on,'' 
discussing this topic, or even encouraging similar 
discussions on the air.  Entercom does admit that the hosts 
``may have on occasion used the phrase `piss on' in 
expressing their anger at the plight of the Buffalo 
Sabres,'' the NHL hockey organization in Buffalo.

     10.  Even accepting Mr. Palko's description of the 
broadcasts, we conclude that  WLDI did not broadcast 
indecent material in violation of the Commission's Rules.  
We first find that the hosts' use of the word ``piss'' in 
conjunction with the phrases ``pissed at'' and ``pissed 
off'' is clearly not indecent.  Both  phrases are commonly 
used slang terms indicating or describing a sense of anger.  
Moreover, in the context of these broadcasts, it appears 
that the hosts used these phrases as a way of expressing 
their anger at the NHL.  Contrary to the allegations in the 
complaint, the hosts did not use the phrases to describe or 
depict an excretory act.  Additionally, the use of the 
phrases did not appear to pander or titillate, and did not 
appear to be presented for shock value.  Thus, we decline to 
find that Entercom's broadcast of the phrases ``pissed at'' 
and ``pissed off'' violated the Commission's rules.

     11.  As noted above, Entercom also admits that the 
hosts may have used the phrase ``piss on'' during the 
broadcasts while they were promoting the distribution of the 
urinal splash guards.  Even assuming, again, that Mr. 
Palko's version of what was broadcast is correct, we do not 
find that this statement is indecent.  When considered 
within the context of the broadcast, the material is not 
patently offensive as measured by contemporary community 
standards for the broadcast medium.  Specifically, we find 
that Entercom's use of the phrase ``piss on'' was not so 
graphic or explicit as to be actionable. We therefore do not 
find this broadcast to be indecent. 

                      ORDERING CLAUSES

     12.  Accordingly, for the reasons set forth herein, IT 
IS ORDERED, pursuant to Section 405 of the Communications 
Act of 1934, as amended, 47 U.S.C. § 405, and Section 1.106 
of the Commission's Rules, 47 C.F.R. § 1.106, that the 
petition for reconsideration filed March 13, 2001 by Michael 
P. Palko is hereby DENIED. 

     13.  IT IS FURTHER ORDERED THAT a copy of this 
MEMORANDUM OPINION AND ORDER shall be sent by Certified Mail 
Return Receipt Requested to Michael P. Palko, Palko Corp., 
2146 Genesee Street, Buffalo, New York, 14211-1938. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1    Mr. Palko stated:  ``I formally ask that you revisit my 
original complaint and issue a warning to WRG radio or 
impose a monetary forfeiture.''

2    See Miller v. California, 413 U.S. 15 (1973), rehearing 
denied, 414 U.S. 881 (1973); Sable Communications of 
California, Inc. v. FCC, 492 U.S. 115 (1989). 

3    See Sable Communications of California, Inc. v. FCC, 
492 U.S. at 126.  

4    See FCC v. Pacifica Foundation, 438 U.S. 726 (1978).  
See also Action for Children's Television v. FCC, 852 F.2d 
1332, 1339 (D.C. Cir. 1988) (``ACT I''); Action for 
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 
1991), cert denied, 112 S.Ct. 1282 (1992) (``ACT II''); 
Action for Children's Television v. FCC, 58 F.3d 654 (D.C. 
Cir. 1995), cert denied, 116 S.Ct. 701 (1996) (``ACT III'').

5    See 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 say and hear.'').  See 
also United States v. Playboy Entertainment Group, Inc., 529 
U.S. 803, 813-15 (2000).

6    Public Telecommunications Act of 1992, Pub. L. No. 356, 
102nd Cong., 2nd Sess. (1992); ACT III.

7    See 47 C.F.R. § 73.3999.

8    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)).

9    In FCC v. Pacifica Foundation, the Supreme Court quoted 
the Commission's definition of indecency with apparent 
approval.  FCC v. Pacifica Foundation, 438 U.S. at 732.  In 
addition, the D.C. Circuit Court of Appeals upheld the 
definition against constitutional challenges.  See ACT I, 
852 F.2d at 1339; ACT II, 932 F.2d at 1508; ACT III, 58 F.3d 
at 657.

10   See ACT I.

11   See ACT III.

12   See Industry Guidance on the Commission's Case Law 
Interpreting 18 U.S.C. § 1464 and Enforcement Policies 
Regarding Broadcast Indecency, 16 FCC Rcd 7999, 8015, para. 
24 (2001).

13   Id.

14   Id., 16 FCC Rcd at 8003, para. 10.

15   See Letter to Mr. Peter Branton, 6 FCC Rcd 610 (1991) 
(``no terms are per se indecent, and words or phrases that 
may be patently offensive in one context may not rise to the 
level of actionable indecency if used in other, less 
objectionable circumstances''), appeal dismissed, Branton v. 
FCC, 993 F.2d 906 (D.C. Cir. 1993).  See also Infinity 
Broadcasting Corp. of Pennsylvania, 3 FCC Rcd 930, 932, 
para. 16, n.28 (1987) (``...we cannot list any particular 
language or material that will always be found indecent.''), 
aff'd in part and remanded in part sub. nom. Action for 
Children's Television v. FCC, 852 F.2d 1332 (D.C.Cir. 1988).