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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-01-IH-0395
)
Entercom Seattle License, LLC ) NAL/Acct. No.
200232080005
) FRN 0003-2457-19
Licensee of Station KNDD(FM), ) Facility ID #34530
Seattle, Washington )
FORFEITURE ORDER
Adopted: September 26, 2002 Released: September
27, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a forfeiture of
$12,000 on Entercom Seattle License, LLC (``Entercom''),
licensee of Station KNDD(FM), Seattle, Washington, for
willful and repeated violations of 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, which prohibit the broadcast of indecent
material at certain times of day. We take this action
pursuant to 47 U.S.C. § 503(b)(1)(D) and 47 C.F.R. §
1.80(f)(4).
II. BACKGROUND
·
2. The Commission received a complaint that KNDD(FM)
broadcast indecent material on May 30, 2001 and on June 1,
2001. The complainant described the material broadcast,
which, the complainant alleged, concerned whether a penis
could be used to lift or pull objects. After reviewing the
complaint, we issued a letter of inquiry to Entercom.
Entercom submitted a response, and included a transcript of
the material at issue in the complaint, which Entercom had
prepared. See Attachment. Entercom also argued that the
material, in context, is not patently offensive as measured
by contemporary community standards for the broadcast
medium, and thus is not actionably indecent.
3. On January 28, 2002, the Bureau issued a Notice of
Apparent Liability (``NAL''),1 which found that the material
apparently violated the Commission's indecency rule. We
concluded that a monetary sanction in the base forfeiture
amount of $7,000 appeared appropriate with respect to each
broadcast. Accordingly, the NAL proposed a forfeiture of
$14,000.
4. Entercom challenges the NAL's findings. Entercom
argues that there is a clear absence of any sexual or
excretory context or import in the complained of material
because the material does not include discussion, either
explicit or implicit, about the sexual or excretory
functions of the male genitalia. In addition, Entercom
contends that the material does not dwell on or repeat at
length sexual or excretory descriptions and does not pander,
and is not used to titillate or shock. For these reasons,
Entercom argues that the material is not actionably indecent
and requests cancellation of the forfeiture. In the
alternative, Entercom asserts that if the proposed
forfeiture is not cancelled, the forfeiture amount should be
adjusted downward to reflect the company's excellent history
of overall compliance with the Commission's rules and the
minor nature of the alleged violation.2
III. DISCUSSION
5. 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.3 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.4 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.5 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.6 Consistent with a
subsequent statute and case law,7 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.
6. 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
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.8 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.9
7. 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. Indecency Policy Statement,
supra, 16 FCC Rcd 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.
8. There is no question that the material broadcast on
May 30, 2001 and June 1, 2001 referred to sexual organs and
that it aired between 6 a.m. and 10 p.m. In this regard,
Entercom contends that the NAL ``is a radical and
unexplained departure from past FCC case precedent, where an
unmistakable sexual or excretory import has been an
indispensable element of an indecency finding.'' We
disagree. The indecency definition clearly encompasses
references to sexual organs, separate and apart from sexual
activities. Moreover, as discussed below, we reject
Entercom's assertion that the broadcasts on May 30, 2001 and
June 1, 2001 were not patently offensive, and thus do not
meet the Commission's definition of indecent material. We
conclude that both broadcasts violated the Commission's
indecency rule.
9. Entercom argues that our finding that the complained
of material meets the Commission's indecency definition
indicates that the use of the clinical term ``penis'' during
a broadcast is per se indecent. In this regard, Entercom
claims that the material aired on KNDD(FM) constituted
humorous segments containing clinical, non-sexual references
to male genitalia in the context of a genuine news story.
However, contrary to Entercom's argument, the material at
issue, in context, was neither clinical nor a news story.
In this regard, we evaluate whether material is patently
offensive under the three key factors set forth above, and
it is the overall context of the material that is critically
important. See Indecency Policy Statement, 16 FCC Rcd at
8003-04.
10. Entercom contends that under the first key factor,
the Commission has found broadcasts that are more graphic
than the material at issue were not indecent. Entercom
cites the ``Power, Power, Power'' segment at issue in Great
American Television and Radio Company, Inc.,
(WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692, 3693 (MMB 1990) as an
example of material with obviously sexual references that
nevertheless did not meet the Commission's indecency
definition. However, in Great American, the Mass Media
Bureau accepted the licensee's assertion that the sexual
references in this segment were susceptible to other
harmless interpretations. Here, the material at issue
contains explicit and graphic references to male genitalia
not similarly susceptible to an interpretation that does not
involve sexual organs. Although Entercom claims that this
material is clinical and is part of a legitimate news story,
we find nothing clinical in the overall context of this
material. There is a reference to a news story on a similar
subject in the material broadcast on May 30, 2001. However,
the overall context of the material is not a bona fide
newscast.
11. Entercom claims, under the second key factor, that
there is no persistent focus on sexual or excretory material
in either the May 30, 2001 or the June 1, 2001 broadcast.
Entercom argues that there are extensive references to the
penis in the May 30 broadcast as a consequence of the news
story that prompted the segment and that these references
are non-sexual. In addition, Entercom argues that the
material broadcast on June 1, 2001 was considerably shorter,
and contained only fleeting references to male sexual
organs. However, the references to male genitalia in the
May 30, 2001 and June 1, 2001 broadcasts on KNDD(FM) were
repeated, and not isolated. Given the overall context of
the material, these references cannot be considered to be
fleeting.10
12. Finally, under the third key factor, Entercom
argues that we ignored the absence of a sexual context, and
erred by finding that the material broadcast on May 30, 2001
and June 1, 2001 was vulgar and lewd. Entercom specifically
claims that citations in the NAL to cases involving similar
material are readily distinguishable because the material
aired on KNDD(FM) did not involve sexual functions or use of
the male genitalia in sexual activities. However, as set
forth above, the Commission's indecency definition is
applicable to material that describes or depicts sexual
organs, which was the subject of these broadcasts. The
cases cited in the NAL support our conclusion that the
material was patently offensive, and there is additional
precedent finding that material describing sexual organs, in
context, also meets the Commission's indecency definition.11
13. Moreover, the graphic descriptions of the male
genitalia and the comments of the on-air personalities
demonstrate that the material, in context, was used to
titillate and shock. In this regard, we reject Entercom's
assertion that these broadcasts are similar to material that
the Commission has determined not to be actionably indecent.
For example, the case concerning an episode of the ``Geraldo
Rivera Show'' entitled ``Unlocking the Great Mysteries of
Sex,'' was not patently offensive within the meaning of the
statute because the program as a whole was a serious
discussion of sex with people knowledgeable in such matters.
See Letter from Chief, Complaints and Investigation Branch,
Enforcement Division, Mass Media Bureau to Gerald P. McAtee
(Oct. 26, 1989). Here, contrary to Entercom's assertion,
the material, in context, cannot be characterized as
clinical, instructional or a bona fide newscast.12
14. Section 503(b) of the Act and 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 47 U.S.C.
§ 503(b), the term ``willfully'' means that the violator
knew that it was taking the action in question, irrespective
of any intent to violate the Commission's rules, while
``repeatedly'' means more than once.13
15. The Commission's Forfeiture Guidelines set a base
forfeiture amount of $7,000 for transmission of
indecent/obscene materials.14 In the NAL, we proposed a
$14,000 forfeiture based upon the broadcast of apparently
indecent material on two separate occasions on May 30, 2001
and June 1, 2001. In this case, Entercom argues that a
downward adjustment of the proposed $14,000 forfeiture is
warranted because of the ``minor nature'' of the violations
and because it has an excellent history of overall
compliance with the Commission's rules.
16. The Forfeiture Guidelines specify that the
Commission shall adjust a forfeiture based upon the
consideration of the factors enumerated in section
503(b)(2)(D) of the Act, such as 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.15 Although we disagree with Entercom's
assertion that broadcast of indecent material on two
separate occasions constitutes a minor violation, we believe
that a downward adjustment of the forfeiture amount is
appropriate in light of Entercom's record of compliance.
After considering all the facts and circumstances, we
conclude that a $12,000 forfeiture is appropriate in this
case.16
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED THAT, pursuant to 47
U.S.C. § 503(b), and 47 C.F.R. §§ 0.111, 0.311 and 1.80,
Entercom Seattle License, LLC FORFEIT to the United States
the sum of twelve thousand dollars ($12,000) for willfully
and repeatedly violating 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999.
18. 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,
within thirty (30) days of the release of this Forfeiture
Order. See 47 C.F.R. § 1.80(h). The payment MUST INCLUDE
the FCC Registration Number (FRN) referenced above, and also
should note the NAL/Acct. No. referenced above. If the
forfeiture is not paid within that time, the case may be
referred to the Department of Justice for collection
pursuant to 47 U.S.C. § 504(a).
19. IT IS FURTHER ORDERED THAT a copy of this
FORFEITURE ORDER 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., Dennis P.
Corbett, Esq., and Philip A. Bonomo, 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
ATTACHMENT
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
J: Jody
B: Bob, the Producer
MV: Caller
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 Producer.
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?
AS: Me?
J: Like if I was to tie, let's say um, what if it was
something small like.
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 that?
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 inch TV.
J: So you would have to be erect?
AS: Yes.
J: Bob?
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 pounds.
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?
B: Perhaps.
AS: No, I don't think you'd pull your penis off with a TV
that small.
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.
J: Really.
B: You could tear some tissue. You don't even want to joke
around with....
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
attached bone.
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?
AS: No.
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.
J: Really?
AS: You don't start out with a shot-put and throw it, you
know, fifty you know ....
J: Yards.
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 motorcycle.
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 choice.
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.
AS: Yes.
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 from them.
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 Rose Circus?
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 pounds.
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?
J: Wow.
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 again.
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 bad
idea.
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.
AS: Yeah.
J: That's it.
AS: Traffic.
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.
AS: Hmm.
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 guys?
B: Oh yeah.
AS: I'll buy them.
J: Yeah?
AS: Yes, alright, Brad.
MV: Yeah, I gotta question on this whole penis thing.
AS: Yeah.
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: What?
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.
MV: Exactly.
J: There's not knobs. Are you sure?
AS: Yes.
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 or something.
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 on it.
AS: Could you get us a hair crunchie please?
J: Scrunchie.
AS: Scrunchie.
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 you me.
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
J: Jody
B: the Producer
C: Carl
K: Kevin
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 Sluts.
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.
AS: Yes.
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 the car.
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 traffic.
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 harness.
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 man.
AS: Alright. All you guys that are here, could you please
grab a harness from Kevin.
J: Yeah.
AS: And try and put it on.
J: Yeah.
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 Entercom Seattle License, LLC, Notice of Apparent
Liability, 17 FCC Rcd 1672 (EB 2002).
2 Entercom also makes a general statement that it
incorporates its argument, made in response to our letter of
inquiry, that the material at issue is consistent with
contemporary community standards for the broadcast medium.
However, Entercom does not specifically challenge our
reasons for rejecting that argument in the NAL. In
addition, Entercom contends that our definition of indecency
is unconstitutional, citing Reno v. ACLU, 521 U.S. 844
(1997). However, the Commission previously has rejected
constitutional challenges to our broadcast indecency
standards based on Reno v. ACLU, a case which invalidated an
indecency standard for the Internet. See, e.g., WQAM License
Limited Partnership, 15 FCC Rcd 2518 (2000)(noting that the
Court indicated that broadcast indecency regulations were
justified based on significant differences between the
Internet and the broadcast medium and between the standard
in the statute at issue and the Commission's broadcast
indecency standard).
3 See 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).
4 Sable Communications of California, Inc. v. FCC, supra
note 3, 492 U.S. at 126.
5 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'').
6 ACT I, supra note 5, 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).
7 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 5.
8 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 5, 438 U.S. at 732.
In addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra
note 5, 852 F.2d at 1339; ACT II, supra note 5, 932 F.2d at
1508; ACT III, supra note 5, 58 F.3d at 657.
9 ACT III, supra note 5.
10 See, e.g., Three Eagles of Columbus, Inc.(KROR(FM)), 15
FCC Rcd 13624, 13625, forfeiture reduced, 15 FCC Rcd 18902
(EB 2000)(forfeiture paid).
11 Independent Group Limited Partnership (WWWE(AM)), 6 FCC
Rcd, 3711, 3712 (MMB 1990); Goodrich Broadcasting, Inc.
(WVIC-FM), 6 FCC Rcd 2178, aff'd 6 FCC Rcd 7484 (MMB 1991);
KFI, Inc.(KFI(AM)), 6 FCC Rcd 3699, 3700 (MMB 1989), cited
at note 10 of the NAL, supra note 1, 17 FCC Rcd at 1675.
See, e.g., Capstar TX Limited Partnership (KTXQ(FM)), 15 FCC
Rcd 19615, 19619 (EB 2000)(segment with discussion of
deformities in male genitals); The Rusk Corporation
(KLOL(FM)), 5 FCC Rcd 6332, 6334-35 (MMB 1990)(on-air
discussion concerning shaving the female genitalia and on-
air reference to ``Aunt Vagina'').
12 See, e.g., GA-MEX Broadcasting, Inc.
(WAZX(AM)/WAZX(FM)), DA 01-996 (EB May 1, 2002).
13 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
14 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''). Forfeiture Guidelines,
supra note 13, 12 FCC Rcd at 17113.
15 47 U.S.C. § 503(b)(2)(D). See also Forfeiture
Guidelines, supra note 14, 12 FCC Rcd at 17100-01.
16 See, e.g., Regent Licensee of Flagstaff, Inc.
(KZGL(FM)), 15 FCC Rcd 17286 (EB 2000)(forfeiture
paid)(downward adjustment of forfeiture assessed for
indecency violation based on licensee's record of
compliance).