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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Entercom Seattle License, LLC ) File No. EB-01-IH-0395
) NAL/Acct. No. 200232080005
Licensee of Station KNDD(FM), ) FRN 0003-2457-19
Seattle, Washington ) Facility ID # 34530
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 25, 2002 Released: January 28,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Entercom Seattle License, LLC
(``Entercom''), licensee of Station KNDD(FM), Seattle,
Washington, apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully and repeatedly broadcasting indecent
language. Based upon our review of the facts and circumstances
in this case, we conclude that Entercom is apparently liable for
a forfeiture in the amount of fourteen thousand dollars
2. The Commission received a complaint that KNDD(FM)
broadcast indecent material on May 30, 31 and June 1, 2001. The
complainant described the material broadcast, and after reviewing
the complaint, we issued a letter of inquiry to the licensee.
3. Entercom submitted a response and included a transcript
of the material at issue in the complaint. In this regard,
Entercom states that it used the approximate times of the
broadcasts, as noted by the complainant, on the dates cited in
the complaint in order to prepare the transcript using tapes of
the broadcasts maintained by the station. See Attachment.1
Entercom argues that the subject matter and the language used in
the complained of broadcasts is not actionably indecent.
Specifically, Entercom contends that the material broadcast, in
context, is not patently offensive as measured by contemporary
community standards for the broadcast medium.
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. See 47 C.F.R. § 73.3999.
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.''
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)). This definition has been
specifically upheld by the federal courts.7 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. ACT I, supra. As noted above, current law holds
that such times begin at 6 a.m. and conclude at 10 p.m.8
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. See 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 at 8015, ¶ 24. ``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.'' Id. 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. See
Indecency Policy Statement, supra, 16 FCC Rcd at 8003 ¶ 10. As
discussed below, we find that the material broadcast on May 30,
2001 and on June 1, 2001 violated the Commission's indecency
7. During the May 30, 2001 broadcast, the KNDD(FM) morning
show personalities discussed whether a penis could be used to
lift or pull objects. The morning show staff then decided to
give away concert tickets to listeners who would agree to appear
in the studio and pull objects using their penises. During the
June 1, 2001 broadcast, the morning show staff prepared to assist
interested listeners in attempting this task. See Attachment.
8. Entercom acknowledges that the material broadcast on
May 30 and June 1, 2001 contained references to sexual organs.
Thus, this material warranted scrutiny. Although Entercom argues
that, in context, this material was not patently offensive, we
9. With respect to the Indecency Policy Statement's first
key factor, we find that the sexual references in both the May 30
and June 1, 2001 broadcasts are explicit and graphic. In this
regard, there is extensive discussion as to whether a penis is
capable of pulling different types and sizes of objects. In
addition, there is discussion as to whether a penis would have to
be erect to pull a 13-inch television, and the relative penis
size necessary to pull a Jeep. Moreover, the anatomical features
of a penis are discussed in terms of how to attach the objects to
be pulled. For example, on June 1, 2001, there is a discussion
about the use of a harness to assist in pulling the objects,
whether an individual's penis is sufficiently erect to put the
harness on and whether his testicles fit through the harness.
Moreover, under the second key factor, the material broadcast on
May 30 and June 1, 2001 dwells on and repeats at length
descriptions of male genitals.
10. The inquiry under the third key factor of the Indecency
Policy Statement is whether the material appears to pander, or is
used to titillate or shock. Entercom argues that the broadcasts
are not patently offensive because they were not intended to
pander to, titillate or shock the audience, and are not lewd or
vulgar. Notwithstanding Entercom's claims, there were vulgar and
lewd references to male genitals in the context of explicit
references to penis size, erections, and the parts of the male
genitals, including the head, shaft and testicles. These
references, in context, are similar to other material that has
been found to be patently offensive.10 Thus, we disagree with
Entercom's assertion that the context of the broadcast would have
been the same if the material had described lifting or pulling an
object using a body part other than the genitals - such as the
nose or a finger. In the complained of material, the sexual
references are used to titillate or shock.11
11. Moreover, we reject Entercom's argument that this
material is consistent with contemporary community standards.
Entercom contends that explicit discussions of male genitalia are
common today on radio and broadcast television, and cites
material dealing with impotence and erectile dysfunction, penis
size, non-clinical discussion of penile enlargement as well as
the Clinton sex scandal. However, as set forth above, the
Commission does not independently monitor broadcasts for indecent
material, and relies on documented complaints of indecent
broadcasting as the basis for its enforcement actions.12 Thus,
the material that Entercom describes, if broadcast between 6 a.m.
and 10 p.m., nevertheless may be, in context, indecent. However,
that material is not at issue here. Entercom also argues that
precedent from the first few years after the Commission adopted
the definition of indecency does not accurately reflect
contemporary community standards and thus suggests that we cannot
rely on this precedent when evaluating the KNDD broadcasts.
Although standards and mores certainly change over time, we
cannot accept Entercom's assertion that the material broadcast on
May 30 and June 1, 2001 is consistent with contemporary community
standards for the broadcast medium. In this regard, looking to a
national community standard that references the average broadcast
listener, we find that the material broadcast on KNDD(FM), in
context, is patently offensive.13 This material appears to be
actionably indecent because it was broadcast after 6 a.m. and
within the period when there was a reasonable risk that children
may have been in the audience.
12. 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.14 Based on the material before us, it
appears that Entercom willfully and repeatedly violated 18 U.S.C.
§ 1464 and section 73.3999 of the Commission's rules, by airing
indecent programming on KNDD(FM) on May 30 and June 1, 2001.
13. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.15 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.''16 After reviewing all of the
circumstances, we believe a $14,000 forfeiture is appropriate in
this case for the apparent broadcast of indecent material on two
IV. ORDERING CLAUSES
14. 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,17 that Entercom
Seattle License, LLC is hereby NOTIFIED of its APPARENT LIABILITY
FOR FORFEITURE in the amount of fourteen thousand dollars
($14,000) for willfully and repeatedly violating 18 U.S.C. § 1464
and section 73.3999 of the Commission's rules.
15. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Entercom SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
16. 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 must
note the NAL/Acct. No. referenced above.
17. 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 DC 20554 and MUST INCLUDE the NAL/Acct.
No. referenced above.
18. 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
19. 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. 20554.18
20. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to John C.
Donlevie, Executive Vice-President, Entercom Seattle License,
LLC, 401 City Avenue, Suite 409, Bala Cynwyd, Pennsylvania, 19004
and to Entercom's counsel, Brian M. Madden, Esq., Leventhal,
Senter & Lerman P.L.L.C., 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Radio Station: KNDD(FM), Seattle Washington
Dates/Time of Broadcasts: May 30, 2001 and June 1, 2001,
between 6 a.m. and 10 p.m.
Material Broadcast: The Andy Savage Show
May 30, 2001
AS: Andy Savage
B: Bob, the Producer
AS: That was the Red Hot Chili Peppers, 107.7, The End. It's
7:16, I'm Andy Savage, along with Jody, Queen of Normandy
and Bob the Producer, who's filling in for Steve the
B: Woop, Woop.
AS: 50 going to 70 for the high today. It's going to be sunny
J: Was that your wacky producer noise right there? Woop, woop,
woop, woop, woop!
AS: Bob, I don't think you should be saying anything 'cuz you
lost on "Beat the Producer.
B: Alright, I'm Sorry, I'll be quiet.
AS: Meanwhile in India when they protest against the federal
government, you know they don't blow things up or anything,
they pull Jeeps with their penises. A uh, Naga Sathu naked
holy man was demonstrating again the government harassment
of naked holy men and to make sure that they heard him he
tied a rope around his penis and pulled a Jeep.
J: He should have just used a megaphone like everyone else.
What the Indian government has a big problem with naked holy
men? Are they're running around crazy like?
AS: I guess so, I guess it's against the law. But he, I guess,
pulled a Jeep to prove his point. I'm sure it was in
neutral. I hope it was in neutral.
J: I can imagine it was in neutral. I'm sure it was one of
those like Suzuki Samurais too, not a big Hummer.
AS: Holy crap Nadi, he just pulled a Jeep and it was in park -
he did it with his penis!
J: You always hear about guys lifting stuff and pulling stuff
with things attached to their penises. I think that is
incredible. Could you pull something with your penis?
J: Like if I was to tie, let's say um, what if it was something
AS: I'd pull my penis right off!
J: If it was something small like
AS: Like an acorn, yeah I can drag that around.
J: Like my orange. Let's say I tied a rope around my orange and
then tied the other end to your penis, and you could pull
AS: Of course I could drag that.
J: How about a 13 inch TV? Like at what point do you think.
AS: If I think, I think if I was fully erect I could pull a 13
J: So you would have to be erect?
AS: Not for an orange though.
J: Bob, could you pull a 13 inch TV?
B: No. I'm not going heavier than ten pounds. I'm not. That's
about my cutoff, about ten pounds- erect, no erect. Ten
J: Well what do you think the problem would be, that you'd pull
your back out or you'd actually pull your penis off?
AS: No, I don't think you'd pull your penis off with a TV that
J: Cause if these guys can drag stuff, why can't you?
AS: We're talking about a Jeep. Why, I don't know I've never
tried nor do I care to try
J: I want to see somebody pull something with their penis
right in front of me live, here in the studio.
B: You could do a lot of damage.
B: You could tear some tissue. You don't even want to joke
AS: Yeah. It's in there in some sort of socket I'm sure. What if
it just pops right out. That would suck.
J: Well it's like saying, you know, what if we're arm wrestling
and my arm pops out of the socket.
AS: That's true.
J: Things are attached with muscles and tendons. Your penis is
attached with muscles and tendons.
AS: No it's a tissue that fills with blood, that's all,
J: Well it's attached.
AS: Well yeah, it's just skin though. It's not like it's an
J: Well if Naboo whatever can pull a Jeep with his penis....
AS: Naga Sathu.
J: Do you think that he has some super penis?
J: And yours is not so super?
B: He's been practicing for a long ass time. He didn't first
start with a Jeep.
J: What about those guys that ?
AS: Mr. Lifto from the Jim Rose Circus.
J: He lifts stuff.
AS: He lifts stuff with his penis and he lifts like concrete
blocks doesn't he?
B: But he started small.
J: So you gotta start small and practice and build up.
AS: I'm sure there's a training regime just, like in any sport.
AS: You don't start out with a shot-put and throw it, you know,
fifty you know ....
AS: Right, whatever. You gotta start small.
J: With like an acorn for instance.
AS: I don't know. How do you learn how to, I guess it's like
anything. You practice, you get better. You pull things with
your penis. You go from an orange to a 13 inch TV to maybe a
J: Can I, can I put something out here, and if you don't like
what I'm about to say then go ahead and just say Jody shut
up. We have so many concert tickets right now, just flying
out of all our pockets - I say tomorrow morning if someone
is willing to come in here and let me tie something onto
their penis and if they can pull it like five feet.... Maybe
something like five pounds, if they can pull it five feet
here in the studio, we'll give them concert tickets. Their
AS: Well, I'll go along with that. But I mean I think it should
be a 'bid' thing. For example, Joe can call up and say yeah
I'll pull an orange for you five feet, big deal. Who wants
to see that?
J: But if someone else can pull a 13 inch TV?
AS: Right. Somebody who's gonna do something kind of amazing,
yeah we'd love to have you.
J: So their choice Godsmack & Deftones tickets or
AS: Three Doors Down.
J: Three Doors Down with Tantric and Lifehouse.
J: Their choice.
B: We're gonna see an amazing spectacle of penis pulling.
J: I wanna see some penis pulling.
B: I guarantee, I guarantee there's people out there that can
pull a lot of stuff with their penis and we're gonna hear
AS: Do you think there's a lot of people out there that spend a
lot of time practicing? I mean if they did, wouldn't we hear
about them in the news or like in some show, like in the Jim
J: You know certain people collect stamps? Other people pull
stuff with their penis. It's whatever your hobby is.
AS: Well this guy did a freakin' Jeep. I don't think anybody is
gonna do that well.
J: That's incredible.
AS: Yes it is. How about a Volkswagen?
J: Some sort of smallish Cabriolet type thing?
AS: A little lighter, yeah?
J: No, we don't need something like that. I'm sayin' like, you
know, some sort of studio equipment that weighs like ten
AS: Let's say, for example, we get 20 people to call in and say
yes, I can pull stuff with my penis. Why don't we get all 20
in to pull the Volkswagen?
AS: That'll make the news.
J: That'd be something.
AS: Alright. Well, check it out. 421-107. It's 7:21. Coming up
we're gonna give you a chance to win some Godsmack/Deftones
tickets in a different sort of way and we're still waiting
for the Stone Temple Pilots "Days of the Week."
J: Yeah, (clapping) whew.
AS: It should be here any minute now.
[Recorded Voice Over: 107.7, The End, Music News You Can Use
-- with Steve the Producer. Now.]
J: If you enjoyed Weezer's new "Green" album you waited four
years for, it looks like you're not going through that
AS: You have it, we have it.
J: We have what?
AS: We have the new Stone Temple Pilots.
J: Oh nice.
AS: Alright, do that.
J: Alright, I'll do this real quick.
J: Uh, Weezer used one day off to go into the studio and start
recording new songs already. They've already laid down demos
for twelve new songs about sixteen minutes of music. I'd
imagine in case you are wondering, among the new songs one
is called "American Gigolo," there is an instrumental called
"Burnt Jamb" that is, j-a-m-b like a doorjamb because they
are clever. Mikey Walsh the bassist says that they do want
to put out a new album every year just like the bands in the
sixties use to and that waiting four years was obviously a
Again Endless Summer Concert #6 are down with Tantric and
Lifehouse. Wednesday July 11, Pickeria, tickets on sale
Friday 4:00 p.m. at Ticketmaster $27.50. Also Endless Summer
Concert #7, Godsmack and Deftones Friday, July 13 at the
Gorge. Tickets go on sale 11a.m. Ticketmaster, $35.00. Of
course, listen all week to win tickets before you can buy
them here on the morning show and inside of Endmail at
107.7.com for extra chances to win.
J: That's it.
J: I-5 north bound heavy at south bound 88th street and then
messy from Oliver Place to Seattle Bridge. 1-5 south bound
congested from 1-96 southwest to northeast 185th street and
shoreline continues heavily at north gate also sluggish
approaching the ship Canal Bridge. 1-5 express lanes are
heavy through the Convention Center. 405 north bound
congested from the Rednest Curve to Colecreek Parkway. 405
South bound slow from 532 Northeast 85th Street and then
heavy at Northeast 44th south. Stop and go through the Red
Nest Curve and then messy from 167 to the 1-5 Interchange at
South Center. 520 East Bound heavy stop and go throughout
the arboretum and that's your End traffic.
J: You ready over there?
AS: Ah, yeah, I'm, I'm just thinking to myself, you know I bet
if we had twenty guys pulling on a Volkswagon with their
penises Q13 would cover it.
J: You think?
AS: Yes, I think they will cover it.
J: But we don't, do we have enough concert tickets for twenty
B: Oh yeah.
AS: I'll buy them.
AS: Yes, alright, Brad.
MV: Yeah, I gotta question on this whole penis thing.
MV: Well, dude seriously, how could you possibly attach it? I
mean are we talking duct tape? Are we talking .....
J: No. No.
AS: Good question.
J: No, no. I'm thinking that we would tie some sort of string-
like fabric around ...
AS: No. You tie string and something that heavy that's gonna
like rip the skin.
MV: Yeah. Jody I love you but you gotta understand its not built
quite like that.
J: No, I've seen penises once or twice before. I can imagine
that maybe bungee cord?
AS: Use one of hair scrunchies or like a wristband or something
and double-up and then tie some string to that.
J: Well how?
MV: Yeah, well, I don't know.
AS: Hair scrunchies!
MV: I'm all for the contest and, more power to you, but that
poor guy. If we're talking like kite strings, god help him.
AS: No, right. That would like sever the head right off,
especially for the circumcised nadoos.
J: Oh, we're not doing it around the head, we're doing it
closer to the bottom of the shaft, you gotta get your whole,
I mean weights and levers.
MV: Yeah, but there's not like knobs down there. I mean what are
you gonna .....
AS: There's not really anything to hold on to, it would slip all
the way to the mushroom, if you will.
J: There's not knobs. Are you sure?
MV: Last time I checked. No, that's what I was curious about. I
think it's a great idea, but man, it's gonna have to be tape
AS: Well you know Brad this is all for not if you don't actually
know how to pull anything with your penis or have never
practiced it, right.
J: I'm gonna have Bob, the producer, pull down his pants real
quick and we're gonna figure out some sort way to tie stuff
AS: Could you get us a hair crunchie please?
J: We gotta trial and error here - is the way to attach things
to your penis.
AS: First we'll have Bob try it. Thank you very much and that's
a fine point, you don't want to use like flimsy bad string.
MV: Absolutely not. It's bad, bad news.
J: Nobody's duct taping anything to anybody's penis, believe
AS: Alright. We'll investigate it, we'll look into it and see
how we can actually do it. Alright, coming up next here
check this out, this is ah, I'm not going to play the whole
thing or anything, just a piece of the new Stone Temple
Pilots called "Days of the Week". [Plays two lines of
music]. Alright that's next. The whole thing on the End.
[Lengthy Commercial Break]
* * * * *
June l, 2001
AS: Andy Savage
B: the Producer
MV: Male voice
AS: Alright, you ready for some music news? It might take Carl a
little while to get the harness on.
[Recorded Voice Over: 107.7, The End, Music News You Can Use
-- with Steve the Producer. Now.]
J: So, if you've been watching VH-1's "Most Shocking Moments Of
Rock. Listen to this. Mark McGrath, he's from Sugar Ray, the
front man, he's hosting it, he's got a shocking past
himself. If you've ever seen Backstage Sluts, 1, 11 and 111.
He was in that, doing some shocking stuff. He agreed to do
the show as long as the network downplayed his involvement
in that series of porn films. He's in it, Fred Durst is in
it, and they're doing very nasty things with groupies. The
series director, porn star Matt Zane shot back at Mark
McGrath and he said that it was Mark's decision to be in the
film and even signed a release form. To have a fellow artist
censor you for your personal reasons is the lowest of low
acts that on can commit. So Matt Zane, pom star, firing back
at Mark McGrath. So basically Mark was just like sure I'll
host it if you pretend like you never saw me in Backstage
Blink 182 news. Drummer Travis Barker has a big problem.
He's been telling people that a deranged stalker has been
after him, broke into his house a number of times, left
letters in each room that read ``I'm watching you, lock your
doors.'' And then the next day, letters again, ``P.S., lock
your doors.'' Travis, obviously freaked out, says since the
incident occurred he invested in two 140-pound Rottweillers
and now carries a gun to protect his family. He says it's
not really him that he's worried about, if it comes down it
he can kick the guy's ass. He's worried about his
girlfriend. Well you know, if it comes down to him or this
weird guy, he's like you know I'll just beat him up. But if
my girlfriend's in the house while I'm on tour, that's what
I'm worried about. He says now if anyone comes into my
house, they're gonna be sorry.
Rehab. Singers Brooks and Danny Boone say they've always
felt like oddballs in their native Atlanta because they're
white rappers. Hmmm, I wonder why they would feel weird
about that? They say we're the only ones that I know of that
are rapping. They say that people usually look at white
rappers as a novelty act. But, ``To me, rhyming is poetry
and that is dateless.''
J: If I can get some of these penis guys out of the way here, I
have some. .
AS: Wait a minute. I hate to interrupt, but we have a problem
here. Apparently crazy Carl can't get aroused enough to get
the harness on.
J: Oh really.
C: Actually, the harness that actually goes around the scrotum
is a little tight and I'm worried about....
AS: Your testicles are too large.
C: We can't snap it through.
J: You're supposed to pull them through there crazy Carl. It's
like a belt.
AS: Kevin, could you go over and help him?
J: Oh God.
K: That's not in my job description.
AS: Well Carl do what you gotta do. Would anybody else like to
try? I mean if you can't get the harness on we can't pull
J: I think Joe the modulator should step up and try.
AS: Yeah virgin.
J: While he's doing this, let me just mention this one thing.
If you sign up for Endmail at 1077theend.com for your
exclusive invitation to another penny pincher concert with
Rehab. It's Tuesday, June 12th at Graceland. It's just a
buck seven with your printed Endmail invite. For Endmail
listeners only. Of course, you cannot get in unless you are
on the Endmail list. Just another reason to sign up for
Endmail at 1077theend.com.
AS: And get there early or you still may not get in 'cause it's
kind of a first come first serve.
J: Not kind of.
AS: There's a fire code you know.
J: It is.
AS: Here's traffic.
J: I-5 Southbound heavy to just before the Orange County line.
405 Northbound just heavy north of northeast 44th. 405
Southbound heavy just South of Southeast 124th. And 167
Northbound heavy off 15th Street to the Green River. And
heavy approaching the 405 interchange, and that's in
AS: Alright. Kevin from Love Zone, these harnesses, are they
specifically made for larger men or what is the deal here? I
mean, how big do you have to be to get into this harness?
K: I believe that they're kind of a one size fits all.
AS: Yeah? So you can be very small and it doesn't matter? I'm
not trying to make fun of anybody here. But, I mean, maybe
Carl has a half inch whatever and can't get it thru the
MV: I think Carl wasn't smart enough to it button and so he's
making up a story about ``Oh, I'm too big to put it on.''
J: Joel's making fun of crazy Carl. I feel things tensing up in
the studio. Joel, he's crazy. You never poke fun at a crazy
AS: Alright. All you guys that are here, could you please grab a
harness from Kevin.
AS: And try and put it on.
AS: And then we'll tie a piece of rope to it. And then we'll
yank you around like dogs .
[Lengthy Commercial Break]
1 As set forth in note 9, infra, the complaint is denied
with respect to material broadcast on May 31, 2001, and thus the
attachment does not include this material.
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 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 III'').
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 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 4, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra note
4, 852 F.2d at 1339; ACT II, supra note 4, 932 F.2d at 1508; ACT
III, supra note 4, 58 F.3d at 657.
8 ACT III, supra note 4.
9 The complained of material broadcast on May 31, 2001 was
a discussion of the use of sexual fantasy to reduce stress, and
included references to masturbation and to fantasies about
sexual encounters with celebrities and others. Although this
material, in context, describes sexual activity, it is not
patently offensive as measured by contemporary community
standards for the broadcast medium and thus is not actionably
indecent. Specifically, the sexual references are not
sufficiently explicit or graphic to be deemed actionable, nor
does the material dwell upon, or repeat at length descriptions
of sexual activities. In context, the sexual references were
not presented to titillate, pander to, or shock the audience.
See, e.g., Citadel Broadcasting Company, (KKMG(FM)), DA 02-23
(EB Jan. 8, 2002). The complaint is denied with respect to the
material broadcast on May 31, 2001.
10 See, e.g., Independent Group Limited Partnership
(WWWE(AM)), 6 FCC Rcd, 3711, 3712 (MMB 1990)(humorous discussion
of a man with a penis on his head, which is a ``birth defect'');
Goodrich Broadcasting, Inc. (WVIC-FM), 6 FCC Rcd 2178, aff'd 6
FCC Rcd 7484 (MMB 1991)(vulgar, repeated and gratuitous
references to sexual organs and activities in the context of
humorous discussions concerning an allegedly true incident in
which a man's testicle was trapped in the drain of a hot tub);
KFI, Inc.(KFI(AM)), 6 FCC Rcd 3699, 3700 (MMB 1989)(discussion
of the size of the genitals of male celebrities and political
leaders, including commentary on the size of erect genitals
relative to those that are not erect.).
11 FCC v. Pacifica Foundation, supra note 4, 438 U.S. at
757 (1978)(Powell, J., concurring in part and concurring in the
judgment)(``[T]he language employed is, to most people, vulgar
and offensive. It was chosen specifically for this quality, and
it was repeated over and over as a sort of verbal shock
12 See ¶ 6, supra. See also, Indecency Policy Statement,
supra, 16 FCC Rcd at 8015.
13 See, e.g., WQAM License Limited Partnership (WQAM(AM)),
15 FCC Rcd, 2518, 2520 (2000) (rejecting a similar argument
concerning contemporary community standards in light of the
Clinton sex scandal and explaining that the Commission uses its
expertise to apply a national community standard that references
the average broadcast viewer or listener). See also, Indecency
Policy Statement, supra, 16 FCC Rcd at 8002 note 15.
14 See Southern California Broadcasting Co., 6 FCC Rcd 4387
15 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).
16 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
17 47 C.F.R. §§ 0.111, 0.311 and 1.80.
18 See 47 C.F.R. § 1.1914.