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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
GA-MEX Broadcasting, Inc., ) File No. EB-01-IH-0411
) FRN 0004-3293-97
Licensee of Station WAZX(AM) ) Facility ID # 22983
Smyrna, Georgia )
) File No. EB-01-IH-0411
) FRN 0004-3294-05
WAZX-FM, Inc., ) Facility ID # 71198
)
Licensee of Station WAZX(FM), ) NAL/Acct. No. 200232080011
Cleveland, Georgia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 30, 2002 Released: May 1, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that GA-MEX Broadcasting, Inc., licensee of
station WAZX(AM), Smyrna, Georgia and WAZX-FM, Inc., licensee of
station WAZX(FM), Cleveland, Georgia (collectively referred to as
``WAZX''), apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999 by willfully broadcasting indecent language.1 Based upon
our review of the facts and circumstances in this case, we
conclude that WAZX is apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. The Commission received a complaint alleging that WAZX
broadcast indecent material during the Spanish-language call-in
talk show ``el Manero'' on April 6, 2001, between 8:00 a.m. and
10:00 p.m. The complainants submitted an audio-tape of the
broadcast. After reviewing the complaint, we issued a Letter of
Inquiry to WAZX, attaching a copy of the audio-tape and
transcript (in English), and asking the licensee whether it
broadcast the material at issue and whether the transcript (as
translated) accurately reflects the broadcast materials.
3. The subject of the morning broadcast focused on teenage
sex and masturbation, with the discussion being led by Claudia P.
Morales, a licensed psychologist, and two on-air personalities
that provided commentary and jokes with taped studio laughter.
Portions of the transcript listed below reveal the following
jokes and commentary Tthe station's on-air personalities made the
following statements during the broadcast:
DJ3: ``That reminds [me] of a little kid
joke. There is a little kid that tells his
mother: `Mom, Mom I need to pee I want
Grandpa to take me [to] the bathroom.' His
mother responds, `wait until your brother can
take you.' The kid screams out, `No I want
it to be my Grandpa.' The mother asks, `Why
does it have to be your grandpa?' The child
responds, `because his hand shakes.''
DJ2: ``The benefits of having Parkinson's
Disease.''
* * * * * * * *
The transcript also includes another joke by one of the on-air
personalities:
DJ3: ``Since we are talking about adults.
There was a young man that had lots of
blemishes, and he asked his friend what to do
about them. The friend told him to take his
girlfriend to the movie and excite her a lot.
Put in your hand, well you know where, and
thean you clean your face with it. When your
hand is nice and wet then you pass it over
your face. He did this and when he came out
everyone started screaming.'' ``He's
injured, he's injured.''
DJ1: ``Why, was she menstruating?''
DJ3: ``Yes, the girl was menstruating.''
* * * * * * * *
One of the on-air personalities also made the following comment
during the broadcast:
DJ2: ``There's the bicycle technique. Did
they ever tell you about that one? You take
your penis put it in between your legs,
squeeze it between your legs and then you
start moving your legs like you're
pedaling.''
4. WAZX filed a response to our inquiry on November 16,
2001 in which it admits that it had broadcast the material in
question and acknowledges that the translation of the broadcast
is essentially accurate with exceptions not relevant to our
determination here., after reviewing the English translation of
the broadcast, it was ``in substantial accord with the accuracy
of its contents.'' WAZX does not deny that it broadcast the
material between the hours of 6 a.m. and 10 p.m. WAZX maintains
in its response that the premise of the weekly show was to
address sexual issues/topics by having a licensed psychologist
respond to on-air call-in questions with ``comments and humor
[provided] from the on-air personalities.'' WAZX argues that
``it is typical in...Latin culture to attempt to make light of or
fun of otherwise serious topics.'' Thus, ``the goal...was to have
fun and cause laughter.'' Nevertheless, WAZX states that it had
already concluded, prior to receiving the Commission's Letter of
Inquiry, ``that the strong content and behavior of the program's
on-air personalities was not appropriate for the stations'
audience and was not in accord with the internal broadcasting
policy of WAZX...'' Further, WAZX notesd that ``the overall tenor
of the show was approaching the limit of good taste'' and it had
therefore canceled the program. Lastly, WAZX states that it
``regrets the broadcast of the specific programming...occurred''
and that it has ``taken steps to ensure that similar questionable
programming is not broadcast in the future.''
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.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 that first, in context,
depicts or describes sexual or excretory activities or organs.
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
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 ( ``Indecency Policy Statement''),
supra, 16 FCC Rcd 7999, 8015, ¶ 24 (2001). ``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.
8. The jokes and commentary in the broadcast quoted above,
in context, refer to sexual or excretory activity or organs
(including the sexual organs of a child). Accordingly, the
material warrants scrutiny in order to determine whether it is
patently offensive. In making this determination, three factors
are particularly relevant: (1) the explicitness or graphic nature
of the description; (2) whether the material dwells on or repeats
at length descriptions of sexual or excretory organs or
activities; and (3) whether the material appears to pander or is
used to titillate or shock. See Indecency Policy Statement,
supra, 16 FCC Rcd at 8003 ¶ 10.
9. With respect to the first key factor, we find that the
sexual references in the broadcast, one of which involves a
child, are explicit and graphic. It is of no consequence that
the jokes did not explicitly refer to a sexual organ or sexual
activity. The Commission has repeatedly held that ``innuendo may
be patently offensive within the meaning of our indecency
definition if it is understandable and clearly capable of a
specific sexual or excretory meaning, which, in context, is
inescapable.''9 Although the jokes consisted of innuendo and
indirect sexual references, not only was the language
understandable and clearly capable of a specific sexual meaning
but also, because of the context, the sexual import was
inescapable.10 Indeed, the reference to menstruation following
the second of the two jokes quoted above removes any doubt as to
what was meant. The comment regarding masturbation was explicit
and graphic.
10. Furthermore, with respect to the second and third
factors, we find that the sexual references are not isolated and
they appear to be used to shock, pander or titillate. WAZX
suggests that the presence of a licensed psychologist
participating in the discussion provided an
informational/educational atmosphere in which teenage sex and
masturbation could be discussed, with the hosts simply adding
humor to an otherwise serious topic. We reject this assertion
based on the overall context of the comments and discussion
engaged in by the on-air personalities. While the psychologist
offered a relatively serious discussion of teenage sex, the on-
air personalities repeatedly undermined and muted the supposed
informational purpose of the program by joking about sexual
activities and organs in a patently offensive manner.11 While
the use of certain terms does not automatically make material
indecent, we believe that the graphic sexual references, as well
as the announcer's comments, laughter, and jokes, show that the
material was offered in a pandering and titillating manner,
rendering the material patently offensive.12
11. The context in which material is offered is essential
to making a determination as to whether material is indecent.
For example, in a case concerning an episode on the ``Geraldo
Rivera Show'' entitled ``Unlocking the Great Mysteries of Sex,''
the Mass Media Bureau held that the material broadcast on that
program 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 the field. Letter From
Chief, Complaints and Investigation Branch, Enforcement Division,
Mass Media Bureau to Gerald P. McAtee, 8210-EJS (issued October
26, 1989). See also King Broadcasting Co. (King-TV), 5 FCC 2971
(1990) (broadcast of high school sex education class not indecent
because material was clinical or instructional). Here, however,
while parts of the broadcast handled the subject matter in a
relatively serious manner, the comments and jokes by the on-air
personalities quoted above cannot be characterized as
educational, clinical or instructional. Rather, the only purpose
of those jokes and comments appears to have been to pander and
titillate.13 The excerpts at issue here are similar to other
broadcasts found to be indecent or apparently indecent.14
12. Thus, we find that the material broadcast on WAZX, in
context, was apparently patently offensive as measured by
contemporary community standards. WAZX does not claim that the
material was broadcast outside the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination. The exchange at issue
was broadcast sometime after 8:15 a.m., when there was a
reasonable risk that children may have been in the audience, and
thus is legally actionable. For these reasons, we find that on
April 6, 2001, WAZX-AM and WAZX-FM apparently violated the
prohibitions in the Act and the Commission's rules against
broadcast indecency.
13. 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.15 Based on the material before us, it
appears that WAZX willfully violated 18 U.S.C. § 1464 and section
73.3999 of the Commission's rules, by airing indecent programming
on WAZX-AM and WAZX-FM.
14. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.16 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.''17
15. After reviewing all of the circumstances, we believe
that a $7,000 forfeiture is appropriate in this case for the
apparent broadcast of indecent material.
IV. ORDERING CLAUSES
16. 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,18 that GA-MEX
Broadcasting, Inc., and WAZX-FM, Inc., are hereby NOTIFIED of
their APPARENT LIABILITY FOR FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully violating 18 U.S.C. §
1464 and section 73.3999 of the Commission's rules.
17. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, WAZX SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
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. The payment MUST INCLUDE
the FCC Registration Number (FRN) referenced above, and also
should note the NAL/Acct. No. referenced above.
19. 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.
20. 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.
21. 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. 20554.19
22. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to Javier
Macias, President, WAZX-FM, Inc., and GA-MEX Broadcasting, Inc.,
2460 N. Atlanta Rd., Smyrna, GA., 20080 and to WAXZ's counsel,
Dan J. Alpert, 2120 N. 21st Rd., Suite 400, Arlington, VA. 22201.
23.
24.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 The program was simulcast on the WAZX's AM and FM
stations.
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 21, 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 43, 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 43.
7 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 43, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra note
43, 852 F.2d at 1339; ACT II, supra note 43, 932 F.2d at 1508;
ACT III, supra note 43, 58 F.3d at 657.
8 ACT III, supra note 43.
9 Citicasters Co. KSJO(FM), 15 FCC Rcd at 1909215 FCC Rcd
19091, 19092 (EB 2000)citing San Francisco Century Broadcasting,
L.P., 8 FCC Rcd 498 (1993).
10 See, e.g., KGB, Inc., (KGB-FM), 7 FCC Rcd 3207 (1992),
forfeiture reduced 13 FCC Rcd 16396 (1998)(``Candy Wrapper''
song, which includes lyrics such as ``my Butterfinger went up
her tight little Kit Kat''). See also, Great American
Television and Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC
Rcd 3692, 3693 (MMB 1990); WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 3704
(MMB 1989).
11 Indecency Policy Statement, 16 FCC Rcd at 8009.
12 See Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19095 (EB
2000), where the Enforcement Bureau rejected a claim by the
licensee that the broadcast of a program on the proper
technique for performing oral sex was not indecent because Dr.
Terry, a sex therapist and certified clinical sexologist, was
engaged in a clinical discussion of the subject. There, the
Bureau found that the disc jockeys' invitation to have Dr. Terry
use a prop on a radio program, combined with their laughter and
statements (such as ``oh yeah, baby'') while she conducted the
demonstration revealed that the material was intended to pander
and titillate as opposed to facilitating a clinical discussion.
13 Id.
14 Citicasters Co.(KSJO(FM) ), 15 FCC Rcd at 19091 (EB
2000) 15 FCC Rcd 19091 (EB 2000)(``joke'' that includes patently
offensive references to incest and sex with children); Tempe
Radio, Inc. (KUPD-FM), 12 FCC Rcd 21828 (MMB 1997)(patently
offensive language referring to sexual activity with a child);
EZ New Orleans, Inc (WEZB(FM)), 12 FCC Rcd 4147 (MMB
1997)(patently offensive references to incest and sexual
activity with an infant).
15 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
16 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 Guidelines); 47 C.F.R.
§ 1.80(b).
17 Forfeiture Guidelines, 12 FCC Rcd at 17110.
18 47 C.F.R. §§ 0.111, 0.311 and 1.80.
19 See 47 C.F.R. § 1.1914.