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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the matter of )
)
Edmund Dinis )
)
Licensee of ) File No. EB-01-IH-0078
WJFD(FM) ) NAL/Acct. No. 200332080002
) FRN No. 0005-0201-02
New Bedford, Massachusetts ) Facility ID No. 18720
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 12, 2002 Released:
December 13, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Edmund Dinis, licensee of Station
WJFD(FM), New Bedford, Massachusetts, and former licensee of
Station WSPR(AM) Springfield, Massachusetts, apparently
violated 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, by
willfully broadcasting indecent programming on Station
WSPR(AM) on four occasions.1 Based upon our review of the
facts and circumstances in this case, we conclude that Mr.
Dinis is apparently liable for a forfeiture in the amount of
twenty-two thousand four hundred dollars ($22,400).
II. BACKGROUND
2. We received a complaint on January 30, 2001 that
alleged that Station WSPR(AM) broadcast indecent material on
its morning show during the period December 5, 2000 through
January 22, 2001. The complainant supplied tapes of a
morning show for various days during this period. We
translated the Spanish-language material on the tapes and
found that portions of the programming broadcast by the
station warranted Commission scrutiny (see Attachment A).
The programming at issue consists of jokes involving anal
sex, oral sex, excretory activities, and sexual intercourse
with a child present. On August 8, 2001, we issued a letter
of inquiry to the licensee enclosing a transcript of those
portions of the tapes as translated by our staff. Mr.
Dinis, by counsel, submitted a response on September 5,
2001.
3. In his response, Mr. Dinis questioned whether the
material was broadcast on WSPR(AM). He indicated that
because the employees who were responsible for programming
at that time have all left his employ and he did not have
tapes of the broadcasts, he has no way to reliably confirm
or deny whether the programming was aired. He also
questioned whether the translation was accurate. On June
13, 2002, we sent Mr. Dinis copies of the cassette tapes
submitted by the complainant that contain the segments
translated and transcribed. In response, on July 30, 2002,
Mr. Dinis confirmed that the translation of the Spanish-
language material is substantially correct. Mr. Dinis
stated that he still cannot confirm or deny whether the
material aired on Station WSPR(AM). He asserts that even if
the material described in our letter of inquiry aired on
WSPR(AM), it is not patently offensive and, thus, it is not
actionably indecent. In mitigation, Mr. Dinis argues 1)
that four of the six passages are jokes told by callers to
the on air show, 2) that the employees at the time of the
alleged broadcasts have been dismissed, 3) that the
replacement employees were instructed regarding the
Commission's rules concerning broadcast of indecent
programming, and 4) that he has a good record of compliance
with the indecency rule throughout 20 years of operation of
Station WJFD(FM).
4. In his September 5, 2001 response, Mr. Dinis
asserted that he cannot tell from the Commission's letter if
the programming in question aired between 6 a.m. and 10
p.m., the time period during which the Commission's
prohibitions regarding indecency apply. Based on
announcements of the time given on the tapes in question,
the material in the attached transcript aired between 7 a.m.
and 9 a.m. on the dates indicated.
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 of 1934, as amended (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.
6. In enforcing its indecency rule, the Commission has
defined indecent speech as language or material that in
context, depicts or describes, in terms patently offensive
as measured by community standards for the broadcast medium,
sexual or excretory activities or organs. Infinity
Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705
(1987) (subsequent history omitted) (citing Pacifica
Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v.
Pacifica Foundation, 438 U.S. 726 (1978)). 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
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. 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 (2001) (¶ 24) (``Indecency Policy
Statement''). ``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
material; (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, 16 FCC Rcd at 8003 ¶ 10.
8. The complained of material, in context, refers to
sexual and excretory organs and activities and thus warrants
scrutiny. We find that the material, in context, is
patently offensive when considered under the three factors
set out in the Indecency Policy Statement.
9. The first key factor concerns whether the material
is explicit or graphic. We find that the programming at
issue contains explicit depictions of anal sex, oral sex,
excretory activities, and sexual intercourse with a child
present. The jokes' sexual and excretory import is lewd,
inescapable and understandable. Mr. Dinis also asserts that
the jokes were fleeting. We disagree. The jokes were not
isolated spontaneous remarks. The jokes at issue are of
substantial duration, and were apparently a regular feature
on the morning show on Station WSPR(AM).
10. We also find that the material was aired for its
shock value. Accordingly, we find that each of the portions
of the programming contained in the attached translation are
so patently offensive as to be indecent. The Commission has
previously found the airing of similar programming indecent.
See Citicasters Co. (WXTB(FM)), 13 FCC Rcd 22004 (1998),
aff'd, 15 FCC Rcd 11906 (2000); Sound Broadcasting
Corporation (KCNA(FM)), 6 FCC Rcd. 2174 (1991), aff'd, 6 FCC
Rcd 5961 (MMB 1991).
11. Mr. Dinis asserts in his July 30, 2002 response
that the language used is not as coarse and explicit as the
language used in other broadcasts that were found not to be
actionably indecent.9 Mr. Dinis cites cases that he
believes contain more offensive language. The Commission's
indecency prohibitions do not turn on the use of any
particular language. See Indecency Policy Statement, 16 FCC
Rcd at 8002 ¶ 9 (explicit language in the context of a bona
fide newscast may not be indecent, while sexual innuendo
that persists and is sufficiently clear to make the sexual
meaning inescapable might be); compare Peter Branton, 6 FCC
Rcd 610 (1991) (subsequent history omitted). Having
considered the programming at issue in the context in which
it was broadcast, we find that the programming at issue is
patently offensive and therefore that it is actionably
indecent.
12. The licensee asserts that the fact that some of
the material originated with callers should be a
consideration in determining whether a sanction is
warranted. The jokes reflected in the attached transcripts
were neither isolated remarks nor were the jokes fleeting
remarks. Instead, the jokes were broadcast as a regular
feature of the morning show on WSPR(AM). We find that the
station was promoting the airing of jokes of this type.
Indeed, some of the jokes originated from the radio station
staff. Thus, we find that Mr. Dinis should be held fully
responsible for the programming aired. We do not find the
fact that some of the indecent programming originated with
callers to be mitigating. See Rubber City Radio Group
(WONE(FM)), 17 FCC Rcd 14745 (EB 2002) (¶ 7).
13. Mr. Dinis also asserts the fact that the employees
of Station WSPR(AM) at the time of the alleged broadcasts
have been dismissed, and that their replacements were
instructed regarding the Commission's rules relating to
indecent broadcasts. As a Commission licensee, Mr. Dinis is
responsible for assuring that the programming broadcast on
his stations does not violate the Commission's rules. In
this case, the indecent programming was more than an
isolated incident. It is well established that licensees
are ultimately responsible for the actions of their
employees. See Empire Broadcasting Corp., 25 FCC 2d 68
(1970). Furthermore, a forfeiture will not be excused by
reason of subsequent remedial action and we do not consider
the action taken in this case to be mitigating. See Brittan
Communications International Corp., 15 FCC Rcd 4852, 4855
(2000).
14. Finally, Mr. Dinis asserts that he has a good
record of compliance over more than 20 years of being the
licensee of Station WJFD(FM). While this does not excuse a
violation, this factor is mitigating when we determine an
appropriate forfeiture amount.
15. Thus, we find that on four different dates Edmund
Dinis apparently violated the prohibitions in the Act and
the Commission's rules against broadcast indecency. 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.10 Based on the
material before us, it appears that Mr. Dinis willfully
violated 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, by airing indecent programming on
WSPR(AM) on four occasions.
16. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.11 The base amount would thus be
$28,000 for the transmission of indecent programming on four
occasions. 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.''12 After
reviewing all of the circumstances including the licensee's
record of compliance with the Commission's rules, we believe
a $22,400 forfeiture is appropriate in this case for the
apparent broadcast of indecent material on December 7, 2000,
December 8, 2000, January 8, 2001, and January 17, 2001.
IV. ORDERING CLAUSES
17. 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,13
that Edmund Dinis. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of twenty-two
thousand four hundred dollars ($22,400) for willfully
violating 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
18. IT IS FURTHER ORDERED, pursuant to section 1.80 of
the Commission's rules, that within thirty days of the
release of this Notice, Edmund Dinis SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
19. 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.
referenced above.
20. 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.
21. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
22. 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. 20554.14
23. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Investigations
and Hearings Division, Enforcement Bureau. Your
certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set
forth in Attachment B of this Notice of Apparent Liability.
This information will be used for tracking purposes only.
Your response or failure to respond to this question will
have no effect on your rights and responsibilities pursuant
to Section 503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment B, please contact OCBO at (202) 418-0990.
24. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Russell C. Powell, Esquire, Taylor & Powell, LLC, 908
King Street, Suite 300, Alexandria, Virginia 22314.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT A
Translation of Programming Aired on WSPR(AM)
December 7, 2000
Caller: A man was peeing in a plant, a cop passes by and
asks why do you have that whistle out. The man says I'm
sorry officer this is not a whistle it's a telescope. The
policeman says, all right I'll see you in court. While in
court the judge tells the man, I see that you are being
charged with peeing in public and having your whistle out.
The man says please you're wrong it was a telescope. The
judge says, well it says here that it was a whistle. Please
explain what you mean by a telescope. The man responds,
well if you put in your mouth it does not whistle, but if
you stick it in your little ass you'll see stars.
C: Shouldn't you use anus or backside, that would be the
preferable term.
Caller: I have a joke. There was a wife and husband
leaving a bar and they were drunk. The wife says wait for
me a second I need to pee out there. Then along came a
vampire and the husband said what do you want. The vampire
responds ``I come to suck you.'' The husband responds
``suck me fast so my wife doesn't find out she's waiting for
me.'' (recorded laughter)
December 8, 2000
The following excerpt is part of a local gossip segment:
Gossip Person: Wait I have something for you. (Singing to
the tune of a Son-By-Four song): ``I'm sorry but I have the
runs at this moment. I'm pushing and clenching my teeth,
when the turd comes out. I'm sweating, sweating very
slowly, agonizing because the turd won't come out. Darling,
pass me the Vaseline, it won't come out routinely, I'm
constipated. And I feel it in my heart!'' That's an
original song.
January 8, 2001
Caller: I have a joke. A drunk man went into town on a
little horse. He had a drink and needed to pee, so he went
outside and pulled out ``Juanito.'' A soldier passed by and
said what are you doing, there are many young ladies that
pass by around here, put your ``whistle'' back inside. The
drunk man said this is not what you think. He said you
better stop or I will arrest you, the drunk man said but
this is not what you think, it's not a whistle, so the
soldier arrested him. They appear in front of the judge and
the judge says you have been arrested for exposing your
whistle in public. The man responded that it was not a
whistle, it was a telescope. If you put it in your mouth
you see nothing, if you put it up your ass you'll see stars.
January 17, 2001
DJ Cassanova: It's time for the dumb joke segment. We'll
start with an in house one. One time ``Pepito'' had just
gotten up and heard moaning and groaning in his parent's
bedroom (DJ begins to make sound effects of moans and
groans). So he walked in and said ``Dad, Dad I want to ride
the horse.'' The Dad agreed so that ``Pepito'' didn't ask
questions. He told him not to make any noise. Pepito gets
on the Dad, and the Dad keeps going up and down. Pepito
then says ``this is going too slow.'' So the Dad starts
going faster and faster. The Mother could not keep it in
anymore and she started moaning. Then when the Dad was
going faster, and the Mother was screaming louder (DJ is
making moaning and groaning sounds) Pepito says, Daddy don't
stop because this is the part where the mail man always
drops me.
Caller: I have a Fidel joke. There was a boat full of
people on their way to visit Cuba. When they got there,
Fidel is standing with many soldiers. He tells everyone,
anyone who is here to see me must have my face tattooed on
their chest. A woman thinks, what am I going to do, I don't
have his face on my chest. When she gets in front of him,
she says I don't have your face tattooed on my chest, but
she opens up her pants, and tells him if you put your hand
down there you will feel the beard. Fidel puts his hand in
and starts feeling around, all of a sudden the woman slaps
him. He asks, why did you do that? The woman responds, I
told you, you could feel around for the beard but I didn't
say you could put your finger in my mouth.
MDJ: I thought he was going to use his cigar. ATTACHMENT B
October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has
400,000 Subscribers Nationwide
or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space
Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard
Service -
Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard
Phase II Licensees -
Small Business is average
gross revenues of $15M or less
for the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band
Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard
Communications Services -
(Block C) Small Business is $40M or less
in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone 1,500 Employees or Fewer
Service
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard
Radio -
Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio employees or less
Services Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes
(excluding carryover losses)
has no more than $2M in annual
profits each year for the
previous two years
New Standard -
Small Business is average
gross revenues of $15M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent 1,500 Employees or Fewer
Licensees
24 GHz - Future Licensees Small Business is average
gross revenues of $15M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information $18 Million in Annual Receipts
Services or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of
Business)
_________________________
1 Edmund Dinis assigned Station WSPR(AM), Springfield,
Massachusetts (Facility I.D. No. 187171) to Antonio F. and
Helena R. Gois, tenants by the entirety on March 6, 2002.
2 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).
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 Letter from Russell C. Powell, Esquire, Attorney for
Edmund Dinis, to Charles W. Kelley, Chief, Investigations
and Hearings Division, Enforcement Bureau dated July 30,
2002 at 2.
10 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
11 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).
12 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
13 47 C.F.R. §§ 0.111, 0.311 and 1.80.
14 See 47 C.F.R. § 1.1914.