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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Rubber City Radio Group ) File No. EB-02-IH-0064
) NAL/Acct. No. 200232080019
Licensee of Station WONE-FM ) FRN 0002-9338-77
Akron, Ohio ) Facility ID # 43873
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 1, 2002 Released: August 2,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Rubber City Radio Group
of Akron, Ohio (``Rubber City''), licensee of Station WONE-
FM, apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully broadcasting indecent language. Based
upon our review of the facts and circumstances in this case,
we conclude that Rubber City is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
2. The Commission received a complaint that WONE-FM
broadcast indecent material on November 29, 2001, at 8:30
a.m. during the ``Morning Show'' program. The complainant
alleges that during a segment featuring the Morning Show
host and a guest from an MTV television show entitled
``Jackass,'' she heard the following exchange: (Guest):
``I've got a joke - what do you get when you stick a butcher
knife up a baby's ass?'' (Host): ``I don't know - what do
you get?'' (Guest): ``A mean hard on.'' The complainant
also alleges that, following this exchange, there was much
laughter and joking by the radio personalities. After
reviewing the complaint, we issued a letter of inquiry to
3. In response to our letter of inquiry, Rubber City
states that, although WONE-FM does not have a recording of
the allegedly indecent broadcast, it does not dispute the
complainant's characterization of the dialogue. Nor does
Rubber City dispute the fact that it broadcast the dialogue
between the hours of 6 a.m. and 10 p.m. Moreover, Rubber
City asserts that it does not condone indecent or obscene
programming. Indeed, Rubber City acknowledges that the host
should have anticipated the need to use a time-delay device,
based on the known background of the guests and the tenor of
the comments the guests made prior to the challenged
dialogue.1 Nevertheless, Rubber City claims that the host
did not know where the ``joke'' was going and submits that
the dialogue was merely a ``fleeting reference,'' i.e., a
spontaneous utterance in the context of a live program.
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 The First Amendment, however, 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. See 47 C.F.R. §
5. In enforcing its indecency rule, the Commission
has defined indecent speech as language that first, in
context, depicts or describes sexual or excretory organs or
activities. Second, the broadcast must be ``patently
offensive as measured by contemporary standards for the
broadcast medium.'' 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). As noted above, 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. The dialogue set out in the complaint refers to a
child's excretory organ and to sexual activity associated
with that child. Thus, this material warrants scrutiny in
order to determine whether it is patently offensive. In
making this determination, 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. 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''), 16 FCC
Rcd 7999 (2001).
7. With respect to the first key factor, we find that
the language of the dialogue is a graphic and explicit
depiction of sexual activity with an infant. The dialogue
graphically depicts a sadistic act of simulated anal sodomy
with an infant and explicitly discusses a person's sexual
arousal in response to that act. Furthermore, with respect
to the third factor, the sexual references appear to be used
to shock and are similar to other patently offensive
material involving graphic references to sexual activity
with children, which were found to be indecent.7 Under
these circumstances, we need not find that the sexual
references were repeated at length, which is relevant under
the second factor, in order to find that the material is
patently offensive. As noted in the Indecency Policy
Statement, broadcasting references to sexual activities with
children, even if relatively fleeting, may be found indecent
where, as here, other factors contribute to a finding of
patent offensiveness.8 Thus, we find that the material
broadcast on WONE-FM, in context, was patently offensive as
measured by contemporary community standards. We also find
that the indecent dialogue was broadcast at 8:30 a.m., when
there was a reasonable risk that children may have been in
the audience, and thus is legally actionable.
8. We are not persuaded by Rubber City's claim that
the host was unaware of the dialogue's sexual import. A
licensee is responsible for the programming of its station.
Mr. Steve Bridges, 9 FCC Rcd 1681 (MMB 1994)(a licensee is
ultimately responsible for the programming it broadcasts,
regardless of the source of the programming); Community
Broadcasters, Inc., 55 FCC 2d 28, 35 (1975)(a licensee is
responsible for material broadcast over its station and may
not avoid liability for a violation by pleading ignorance of
what was broadcast). The failure of Rubber City's host to
edit a guest's indecent material, especially where, as here,
the host was aware of the questionable nature of the guest's
material and could have used a time-delay device, does not
relieve Rubber City of liability. Accordingly, for the
reasons discussed above, we find that on November 29, 2001,
WONE-FM apparently violated the prohibitions in the Act and
the Commission's rules against broadcast indecency.
9. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80(a) 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 provisions of the Act or the 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 it was taking the action in question,
irrespective of any intent to violate the Commission's
rules.9 Because Rubber City elected not to edit its guest's
indecent dialogue, it appears that Rubber City willfully
violated 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, by airing indecent programming on WONE-
FM between the hours of 6 a.m. and 10 p.m.
10. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.10 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.''11 After reviewing all of the circumstances,
we believe a $7,000 forfeiture is appropriate in this case
for the apparent broadcast of indecent material.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, and 1.80 of the Commission's rules,12
that Rubber City Radio Group is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully violating 18 U.S.C.
§ 1464 and section 73.3999 of the Commission's rules.
12. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty days of the
release of this Notice, Rubber City SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
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 MUST INCLUDE the FCC Registration Number (FRN)
referenced above, and also should note the NAL/Acct. No.
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
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. 20554.13
17. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Rubber City Radio Group, 1795 West Market Street, Akron,
Ohio 44313, and to Rubber City's counsel, Erwin G. Krasnow,
of Shook, Hardy & Bacon LLP, Hamilton Square, 600 14th
Street, N.W., Suite 800, Washington, D.C. 20005-2004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 According to a WONE-FM employee, the ``Jackass''
guests have a reputation for being ``rebellious'' and have
a penchant for ``get[ting] a rise out of people.'' See
letter dated February 21, 2002, from Erwin G. Krasnow,
Shook, Hardy & Bacon, L.L.P., counsel for Rubber City, to
Charles W. Kelley, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
2 Sable Communications of California, Inc. v. FCC,
492 U.S. 115 (1989); Miller v. California, 413 U.S. 15
(1973), rehearing denied, 414 U.S. 881 (1973).
3 Sable Communications of California, Inc. v. FCC,
supra note 2, 492 U.S. at 126.
4 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
5 ACT I, supra note 4, 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, supra note 4.
7 Citicasters Co.(KSJO(FM)), 15 FCC Rcd 19091 (EB
2000)(``joke'' that includes patently offensive references
to incest and sex with children); Tempe Radio, Inc (KUPD-
FM), 12 FCC Rcd 21828 (MMB 1997)(patently offensive
language referring to sexual activity with a child); EZ New
Orleans, Inc (WEZB(FM)), 12 FCC Rcd 4147 (MMB
1997)(patently offensive references to incest and sexual
activity with an infant).
8 Indecency Policy Statement, 16 FCC Rcd at 8009.
9 See Southern California Broadcasting Co., 6 FCC Rcd
10 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).
11 Forfeiture Statement, 12 FCC Rcd at 17110.
12 47 C.F.R. §§ 0.111, 0.311 and 1.80.
13 See 47 C.F.R. § 1.1914.