Click here for Adobe Acrobat version
Click here for Microsoft Word version
Click here for separate statement of Chairman Michael K. Powell
Click here for separate statement of Commissioner Michael J. Copps
Click here for separate statement of Commissioner Kevin J. Martin
Click here for separate statement of Commissioner Jonathan S. Adelstein

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
                                )
YOUNG BROADCASTING OF SAN        )    File No. EB-02-IH-0786
FRANCISCO, INC.                  )    NAL/Acct. No. 200432080010
                                )    FRN 0004675815
Licensee, Station KRON-TV        )    Facility ID No. 65526
San Francisco, California        )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  January 23, 2004           Released:  January 27, 
2004

By the Commission:  Chairman Powell, and Commissioners Copps, 
Martin, and Adelstein issuing separate statements.

                         I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  For  Forfeiture 
(``NAL''),   issued   pursuant   to   section   503(b)   of   the 
Communications Act of 1934, as amended (the ``Act'') and  section 
1.80 of the Commission's rules,1 we find that Young  Broadcasting 
of San Francisco, Inc. (``Young''), licensee of Station  KRON-TV, 
San Francisco,  California,  aired program  material  during  the 
``KRON 4 Morning News'' show on October 4, 2002, that  apparently 
violates the  federal  restrictions regarding  the  broadcast  of 
indecent material.2   Based  upon our  review  of the  facts  and 
circumstances of this case, we conclude that Young is  apparently 
liable for a  monetary forfeiture in  the amount of  Twenty-Seven 
Thousand Five Hundred Dollars ($27,500.00), the statutory maximum 
in this context, for  broadcasting indecent material in  apparent 
violation of  18  U.S.C.  §  1464  and  section  73.3999  of  the 
Commission's rules. 

                         II.  BACKGROUND

     2.   The  Enforcement   Bureau   (``Bureau'')   received   a 
complaint alleging that Station  KRON-TV aired indecent  material 
during the ``KRON 4  Morning News'' show on  October 4, 2002,  at 
approximately 8:25  a.m.3  Specifically,  the complainant  stated 
that the  show's  hosts  interviewed performers  with  the  stage 
production of ``Puppetry  of the Penis,''  who appeared in  capes 
but were  otherwise naked  beneath the  capes.4  The  complainant 
further alleged that, during the course of the interview, one  of 
the performers exposed his  penis while preparing to  demonstrate 
``genital origami.''5  

     3.   On May 27, 2003, the Bureau sent a letter of inquiry to 
Young concerning the  material aired over  KRON-TV on October  4, 
2002, and included a copy of the complaint.6  Young responded  to 
the Bureau's letter of  inquiry on July 3,  2003, and provided  a 
videotape of the ``KRON 4 Morning News'' show aired between  7:00 
and 9:00  a.m. on  October 4,  2002.7  During  a segment  of  the 
broadcast in  question, the  show's  hosts interviewed  two  male 
performers who tour with the  stage production ``Puppetry of  the 
Penis.''8 The  performers appeared  on camera  wearing capes  and 
discussed their stage show, in which they appear nude in order to 
manipulate and stretch their genitalia to simulate a wide variety 
of  ``installations,''  including   objects,  architecture,   and 
people.9   During  the  course  of  the  interview,  one  of  the 
performers asked  whether  they  could  demonstrate,  by  stating 
``should we  show you  a couple  of quick  ones?''10 One  of  the 
show's  two  hosts   agreed,  if  the   demonstration  was   done 
``quickly.''11 As the performers stood and apparently turned away 
from the camera to demonstrate their act to the show's hosts, the 
penis of one was fully exposed on-camera.12  

     4.   Young maintains  that  the complained-of  material,  in 
context, does not meet the Commission's indecency definition, and 
that no further action is warranted. Young acknowledges that  the 
performer's penis was  exposed, but argues  that this very  brief 
exposure  was  accidental  and  unintentional,13  and  that   the 
complained-of material was part of the bona fide news coverage of 
the ``Puppetry  of the  Penis.''14 Young  also points  out  that, 
prior to the  time that the  segment at issue  aired, the  show's 
hosts repeatedly referenced the  subject matter of the  interview 
segment and suggested  that parents might  want to prevent  their 
children from viewing the interview.15  In addition, Young  notes 
that, immediately following  the broadcast  of the  complained-of 
material, the show's hosts  twice apologized on  the air and,  on 
the day  of the  broadcast, the  station issued  a press  release 
apologizing for the incident.16   Moreover, Young states that  it 
took disciplinary action  following the  broadcast by  suspending 
station personnel involved.17 

                                               III.   DISCUSSION

     5.   The Federal Communications Commission is authorized  to 
license  radio   and  television   broadcast  stations   and   is 
responsible for enforcing the  Commission's rules and  applicable 
statutory provisions concerning the operation of those  stations.  
The Commission's  role  in  overseeing program  content  is  very 
limited.  The First Amendment  to the United States  Constitution 
and section 326 of the Act prohibit the Commission from censoring 
program material and from interfering with broadcasters'  freedom 
of  expression.18   The  Commission   does,  however,  have   the 
authority  to   enforce  statutory   and  regulatory   provisions 
restricting indecency  and  obscenity.   Specifically,  it  is  a 
violation  of  federal  law  to  broadcast  obscene  or  indecent 
programming.  Title 18  of the United  States Code, Section  1464 
prohibits the  utterance of  ``any obscene,  indecent or  profane 
language by  means  of  radio  communication.''19   In  addition, 
section 73.3999 of the Commission's rules provides that radio and 
television stations shall not  broadcast obscene material at  any 
time, and shall not broadcast indecent material during the period 
6 a.m. through 10 p.m.  

     6.   Under section 503(b)(1) of the  Act, any person who  is 
determined by  the Commission  to  have willfully  or  repeatedly 
failed to  comply with  any provision  of the  Act or  any  rule, 
regulation, or order issued by the Commission shall be liable  to 
the United States for a forfeiture penalty.20  In order to impose 
such a forfeiture penalty, the Commission must issue a notice  of 
apparent liability, the notice must  be received, and the  person 
against whom the notice has been issued must have an  opportunity 
to show, in  writing, why  no such forfeiture  penalty should  be 
imposed.21  The Commission  will then  issue a  forfeiture if  it 
finds by  a preponderance  of the  evidence that  the person  has 
violated the Act or a Commission rule.22  As set forth in greater 
detail below,  we  conclude under  this  standard that  Young  is 
apparently liable  for  a  forfeiture for  its  apparent  willful 
violation of  18  U.S.C.  §  1464  and  section  73.3999  of  the 
Commission's rules.



             A.     Indecency Analysis

     7.   Any  consideration   of   government   action   against 
allegedly indecent programming  must take into  account the  fact 
that such speech is protected  under the First Amendment.23   The 
federal courts consistently have  upheld Congress's authority  to 
regulate  the  broadcast  of  indecent  material,  as  well   the 
Commission's interpretation and  implementation of the  governing 
statute.24  Nevertheless,  the  First  Amendment  is  a  critical 
constitutional  limitation  that   demands  that,  in   indecency 
determinations,  we  proceed  cautiously  and  with   appropriate 
restraint.25  

     8.   The Commission  defines  indecent  speech  as  language 
that, in  context,  depicts  or  describes  sexual  or  excretory 
activities or organs in terms  patently offensive as measured  by 
contemporary community standards for the broadcast medium.26  

           Indecency findings  involve  at  least  two 
           fundamental  determinations.   First,   the 
           material alleged to  be indecent must  fall 
           within the  subject  matter  scope  of  our 
           indecency definition¾that is, the  material 
           must describe or depict sexual or excretory 
           organs or  activities. .  . .  Second,  the 
           broadcast must  be  patently  offensive  as 
           measured    by    contemporary    community 
           standards for the broadcast medium.27

     9.   As an  initial  matter,  Young does  not  dispute  that 
Station KRON-TV aired  adult male frontal  nudity.28 Because  the 
broadcast material depicted a sexual organ, it therefore warrants 
further scrutiny  to determine  whether or  not it  was  patently 
offensive as measured by contemporary community standards for the 
broadcast medium.29  

     10.  In our  assessment  of whether  broadcast  material  is 
patently offensive,  ``the full  context  in which  the  material 
appeared is  critically important.''30   Three principal  factors 
are significant to this contextual analysis: (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.31   In 
examining these three factors, we must weigh and balance them  to 
determine whether the  broadcast material  is patently  offensive 
because ``[e]ach indecency case  presents its own particular  mix 
of these, and possibly, other factors.''32  In particular  cases, 
one or  two  of  the  factors may  outweigh  the  others,  either 
rendering  the   broadcast   material  patently   offensive   and 
consequently  indecent,33   or,   alternatively,   removing   the 
broadcast material from the realm of indecency.34  In this  case, 
we examine all three factors  and determine that, in context  and 
on balance, the complained-of  material is patently offensive  as 
measured by contemporary  community standards  for the  broadcast 
medium.  We note that, in particular, the station's  presentation 
of  full  frontal  nudity  in   a  manner  that  was   pandering, 
titillating and shocking weighs heavily in this determination.

     11.   First, Young admits that there was an actual depiction 
of the male  genitalia.  However, Young  argues that because  the 
exposure of the performer's penis was accidental and the duration 
of the exposure was very limited, the material is not graphic  or 
explicit. We disagree, finding that assertions that the  exposure 
was fleeting  and  unintentional  are  more  appropriate  to  the 
analysis under the second and third factors, as discussed  below. 
We find  that in  the context  presented here,  the depiction  of 
adult male frontal nudity was graphic and explicit.  

     12.  Second, although the actual exposure of the performer's 
penis was fleeting in  that it occurred for  less than a  second, 
the  manner  in  which   the  station  presented  this   material 
establishes,  under  the  third  factor,  that,  in  its  overall 
context, the  material  was  apparently intended  to  pander  to, 
titillate and shock  viewers. Thus, we  reject Young's  assertion 
that this material is equivalent to other instances in which  the 
Commission has ruled  that fleeting remarks  in live,  unscripted 
broadcasts do not meet the indecency definition.35  

     13.  The record here demonstrates that the station failed to 
take adequate precautions to  ensure that no actionably  indecent 
material was broadcast despite  its awareness that the  interview 
involved performers who  appear nude in  order to manipulate  and 
stretch their genitalia.36  Under these circumstances, the airing 
of  indecent   material   during  the   interview   was   clearly 
foreseeable.37 Here,  we  find inherently  not  credible  Young's 
assertion that certain  station personnel were  unaware that  the 
performers were nude beneath the capes worn on-camera.38  At  the 
beginning of the segment, one  of the show's hosts explains  that 
the ``Puppetry  of  the Penis''  ``begins  [...] with  two  naked 
performers  in  capes  with   us  this  morning  [...].''39   The 
performers later acknowledged,  when asked by  the show's  hosts, 
that they  perform wearing  nothing more  than capes,  which  are 
discarded after four minutes,  shoes and socks,  and that one  of 
them also wears  a hat.40  Moreover,  the segment, as  broadcast, 
includes comments of station personnel  who are off the set,  and 
who urge the  performers to demonstrate  by stating, ``let's  see 
it.''41 One of the show's hosts responds to the comment, stating, 
``Jan and Janelle, they're tired  of the talking[...].'' 42   The 
segment also includes camera shots of these women off the set  as 
they observe the performers'  manipulation of their  genitalia.43  
In addition,  following the  actual exposure  of the  performer's 
penis and the  off-set shots,  the show's  cameras were  directed 
only to  the  performers'  upper  bodies  as  they  continued  to 
demonstrate a portion of their act, displaying their penises off-
camera.44 This indicates that the station purposefully set up its 
cameras to attempt to avoid full frontal body shots, even  though 
this effort ultimately was unsuccessful.    

     14.  Young  nevertheless  argues   that  the   complained-of 
material was not aired  to pander to  or titillate the  audience, 
nor was it broadcast for its shock value.45  Young thus maintains 
that the material at  issue here was  not patently offensive  for 
the same reasons  that the  Commission ruled  that frontal  adult 
nudity depicted in a broadcast  of the film Schindler's List  was 
not patently offensive.46   We disagree.  In  that decision,  the 
Commission held that the staff of the then-Mass Media Bureau  had 
properly concluded that a broadcast of this film was not patently 
offensive as measured by contemporary community standards for the 
broadcast  medium,   based  upon   the   full  context   of   its 
presentation, including  the  subject  matter of  the  film,  the 
manner of  presentation, and  the warnings  that accompanied  the 
broadcast of the film.  The staff  determined, and the Commission 
agreed, that in the  particular broadcast of  the film at  issue, 
the depiction  of  adult frontal  nudity  was incidental  to  the 
broadcast material's rendering of a historical view of World  War 
II and  wartime atrocities,  which, viewed  in context,  was  not 
presented in  a pandering,  titillating or  vulgar manner.47   By 
contrast,  the  manner  of  presentation  of  the   complained-of 
material over Station KRON-TV, for  which the licensee failed  to 
take  adequate  precautions,   was  pandering,  titillating   and 
shocking, as discussed above.  We  note, in particular, the  off-
camera employees'  comments urging  the performers  to conduct  a 
nude demonstration, and the partially off-camera demonstration to 
the show's  hosts.48   Considering  the overall  context  of  the 
segment, the presence of warnings issued by the station is not  a 
sufficient basis  on which  to  conclude that  the  complained-of 
material is  not  patently  offensive.49  Nor  do  we  find  that 
Young's apologies to Station KRON-TV viewers and the disciplinary 
actions taken  against certain  station employees  following  the 
broadcast mitigate its liability for violation of the statute and 
the  Commission's  rules.50  We  find  that  the  weight  of  the 
pandering,  titillating  and  shocking  manner  of  presentation, 
coupled with the graphic  and explicit nature  of the adult  male 
frontal  nudity,  renders  this  broadcast  indecent  under   the 
statute.

     15.   It is undisputed  that the complained-of material  was 
broadcast within the 6 a.m. to 10 p.m. time frame relevant to  an 
indecency determination under section 73.3999 of the Commission's 
rules.  Thus, because there was  a reasonable risk that  children 
may have been in  the audience at the  time that the material  at 
issue was broadcast on October 4, 2002, the broadcast is  legally 
actionable.51  By airing this material, Young apparently violated 
the prohibitions in 18 U.S.C. §  1464 and section 73.3999 of  the 
Commission's rules, the rule against broadcast indecency.

               B.        Proposed Forfeiture 

     16.  Based upon our review  of the record  in this case,  we 
conclude  that  Young  is  apparently  liable  for  the   willful 
violation of  our  rules.   The  Commission's  Forfeiture  Policy 
Statement  sets   a  base   forfeiture  amount   of  $7,000   for 
transmission of indecent or obscene materials.52  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.''53   In this  case, 
taking all  of these  factors into  consideration, we  find  that 
Young is apparently liable for a forfeiture of $27,500.00,  which 
is the statutory maximum.   Based upon our  review of the  entire 
record, we believe that this upward adjustment is warranted.  The 
broadcast was extremely graphic and titillating.  Given the  fact 
that the  licensee broadcast  material involving  performers  who 
appear nude in order to manipulate their genitalia, and who  were 
in fact  nude  during the  interview  except for  easily  removed 
capes, the  licensee  failed  to  take  adequate  precautions  to 
prevent the  broadcast of  indecent material.  Consequently,  the 
egregious nature of the violation  and the degree of  culpability 
justify an increase to the maximum statutory amount. 

                   IV.        ORDERING CLAUSES

     17.  ACCORDINGLY, IT IS ORDERED, pursuant to section  503(b) 
of the Communications Act of  1934, as amended, and section  1.80 
of the  Commission's  rules,54  that Young  Broadcasting  of  San 
Francisco, Inc. is hereby NOTIFIED of its APPARENT LIABILITY  FOR 
FORFEITURE in the  amount of Twenty-Seven  Thousand Five  Hundred 
Dollars ($27,500.00) 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  (30) days of the  release 
of this Notice, Young 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'')(0004675815)   and  also 
should note the NAL/Account Number (200432080010).

     20.  The response,  if any,  must be  mailed to  William  H. 
Davenport,   Chief,   Investigations   and   Hearings   Division, 
Enforcement Bureau, Federal  Communications Commission, 445  12th 
Street, S.W, Room 3-B443, Washington D.C. 20554 and MUST  INCLUDE 
the NAL/Acct. No. referenced above.

     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. 20554.55 

     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 Young qualifies as a  small 
entity and  if it  wishes to  be treated  as a  small entity  for 
tracking purposes, it should so certify to us within thirty  (30) 
days of this  NAL, either  in its  response to  the NAL  or in  a 
separate filing to  be sent  to the  Investigations and  Hearings 
Division.   The  certification  should  indicate  whether  Young, 
including its 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  A  of  this  Notice  of  Apparent  Liability.    This 
information will  be used  for tracking  purposes only.   Young's 
response or  failure to  respond to  this question  will have  no 
effect on  its rights  and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  Young  has  questions 
regarding any of  the information contained  in Attachment A,  it 
should contact OCBO at (202) 418-0990.

     24.  Accordingly, IT IS  ORDERED, that  the complaint  filed 
against Station  KRON-TV's  broadcast  on  October  4,  2002,  IS 
GRANTED to the extent indicated herein, AND IS OTHERWISE  DENIED, 
and the complaint proceeding IS HEREBY TERMINATED.56

     25.  IT IS FURTHER ORDERED,  that a copy  of this Notice  of 
Apparent Liability For Forfeiture shall be sent by Certified Mail 
Return Receipt Requested to Paul Dinovitz, President and  General 
Manager, Young Broadcasting of San Francisco, Inc., 1001 Van Ness 
Avenue, San Francisco, California  94109 and to Young's  counsel, 
Mark J.  Prak,  Esquire  and  Stephen  Hartzell-Jordan,  Esquire, 
Brooks, Pierce, McLendon,  Humphrey &  Leonard, L.L.P.,  Wachovia 
Capitol  Center,  Suite  1600  (27601),  Post  Office  Box  1800, 
Raleigh, North Carolina 27602, and to Pamela T. Ferguson. 


                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         Marlene H. Dortch
                         Secretary

                          ATTACHMENT A


                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      Small Business is $40M or less 
(Block C)                    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 Service     1,500 Employees or Fewer
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 Services employees or less
                            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 Licensees     1,500 Employees or Fewer
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 Services  $18 Million in Annual Receipts 
                                        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)

                      SEPARATE STATEMENT OF
                   CHAIRMAN MICHAEL K. POWELL

Re:  Young Broadcasting of San Francisco, Inc., Licensee, Station 
KRON-TV,  San  Francisco,  Notice   of  Apparent  Liability   for 
Forfeiture

     Today, we open  another front  in our  increased efforts  to 
curb indecency on our nation's airwaves by focusing on  indecency 
on television.  I  believe it is  irresponsible of our  country's 
programmers and  broadcasters to  continue to  try and  push  the 
envelope in the  face of Commission  policies aimed at  balancing 
the needs to protect our children with the interests of the First 
Amendment.  Where, as here, we  believe that a broadcast  crosses 
that line, we will continue  to enforce our indecency rules  with 
vigor.









































                      SEPARATE STATEMENT OF 
                  COMMISSIONER MICHAEL J. COPPS

Re:  Young Broadcasting of San Francisco, Inc., Licensee, Station 
KRON-TV, San Francisco, Notice of Apparent Liability for 
Forfeiture (``NAL'')

     I am  pleased  that this  Commission  is finally  taking  an 
initial step against indecency on television.  That being said, I 
am disappointed that this complaint was filed over 15 months  ago 
and we are just now addressing  it.  When we allow complaints  to 
languish for over a year, the message is loud and clear that  the 
FCC is not serious about enforcing our nation's laws.  Meanwhile, 
numerous other complaints  about indecency  on television  remain 
unaddressed.   I   hope  we   will  take   up  those   complaints 
expeditiously.  The time has come  for this Commission to take  a 
firm stand against  the ``race  to the bottom''  on the  public's 
airwaves. 









































 


                    SEPARATE STATEMENT OF 
                COMMISSIONER KEVIN J. MARTIN

Re:  Young  Broadcasting of  San Francisco,  Inc., Licensee, 
Station KRON-TV, San Francisco, Notice of Apparent Liability 
for Forfeiture

     I support  the strong  action the Commission  is taking 
today to  enforce our indecency regulations.   While hard to 
believe,  this  appears  to  be only  the  second  time  the 
Commission  has  ever found  a  television  broadcast to  be 
indecent.   I  hope  that  this step  today  represents  the 
beginning  of  a  commitment   to  consider  each  indecency 
complaint seriously, and to  recognize that indecency on our 
airwaves is not limited to the radio.








































                    SEPARATE STATEMENT OF 
             COMMISSIONER JONATHAN S. ADELSTEIN

Re:  Young Broadcasting of San Francisco, Inc., 
Licensee, Station KRON-TV, San Francisco, Notice of 
Apparent Liability for Forfeiture

     I strongly support  the action we take  today to combat 
indecency  on broadcast  television.  The  Commission has  a 
duty   to  enforce   statutory  and   regulatory  provisions 
restricting broadcast indecency.   The material broadcast in 
this  case clearly  warrants the  statutory maximum  $27,500 
fine.  I  hope that today's  action will continue  to remind 
broadcasters  of their  responsibility to  serve the  public 
interest  and   protect  children  from  indecency   on  the 
airwaves.   Today's action  continues a  series of  measures 
indicating   that  the   Commission  is   stepping  up   its 
enforcement against indecency on the airwaves.  


































_________________________

1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See 18  U.S.C. § 1464;  47 C.F.R.  § 73.3999; and  47 U.S.C.  § 
503(b).  
3 Letter from  Pamela T. Ferguson  to the Federal  Communications 
Commission,  Enforcement  Bureau,  Investigations  and   Hearings 
Division, dated October 7, 2002.    
4 Id. We  note that  the complainant  incorrectly identified  the 
stage production as ``The Penis Puppeteers.''
5 Id.  
6 Letter from  the Chief, Investigations  and Hearings  Division, 
Enforcement Bureau, to Young Broadcasting of San Francisco, Inc., 
dated May 27, 2003.     
7 See Letter from  Mark J. Prak,  Esquire, and Stephen  Hartzell-
Jordan, Esquire, Brooks,  Pierce, McLendon,  Humphrey &  Leonard, 
L.L.P., counsel to Young Broadcasting of San Francisco, Inc.,  to 
the Investigations  and  Hearings Division,  Enforcement  Bureau, 
dated July 3, 2003 (``Young  Response'') at 1.  In addition,  the 
Bureau's supplemental letter  of inquiry, issued  July 29,  2003, 
asked Young to provide  information and documentation  concerning 
whether all  or any  portion of  the complained-of  material  was 
broadcast over any other commonly-owned station.  Letter from the 
Deputy Chief, Investigations  and Hearings Division,  Enforcement 
Bureau, to Young Broadcasting of San Francisco, Inc., dated  July 
29, 2003.  By letter dated  August 4, 2003, Young responded  that 
it did  not broadcast  all or  any portion  of the  complained-of 
material over any station licensed to it other than Station KRON-
TV.  See Letter from Mark J. Prak, Esquire, and Stephen Hartzell-
Jordan, Esquire, Brooks,  Pierce, McLendon,  Humphrey &  Leonard, 
L.L.P., counsel to Young Broadcasting of San Francisco, Inc.,  to 
the Investigations  and  Hearings Division,  Enforcement  Bureau, 
dated August 4, 2003 (``Young Supplemental Response'') at 1.
8 Young Response at Exhibits C, D, E and F.  
9 Young Response at and Exhibits D, E, and F.  Specifically,  the 
performers use  their genitalia  to create,  among other  things, 
likenesses of the Eiffel Tower,  a hamburger, a baby kangaroo,  a 
boomerang, public figures and movie characters.   
10 Id. at Exhibit C, 8:22 a.m.  
11 Id. at 2 and Exhibit C, 8:22 a.m.  
12 Id. at Attachment 2 and Exhibit C, 8:22 a.m.
13 Id. at 1, 5, 6, 8.
14 Id. at 4.
15 Id. at 3.
16 Id. at 1, Attachment 1 and Exhibit I.
17 Young Response at 12, Exhibit H.   
18 See 47 U.S.C. § 326.
19 18 U.S.C. § 1464. 
20 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also  47 
U.S.C. § 503(b)(1)(D) (forfeitures for  violation of 18 U.S.C.  § 
1464).  Section 312(f)(1)  of the  Act defines  willful as  ``the 
conscious and  deliberate commission  or omission  of [any]  act, 
irrespective of any  intent to  violate'' the law.   47 U.S.C.  § 
312(f)(1). The legislative  history to section  312(f)(1) of  the 
Act clarifies that  this definition  of willful  applies to  both 
sections 312 and 503(b)  of the Act, H.R.  Rep. No. 97-765,  97th 
Cong. 2d Sess. 51 (1982),  and the Commission has so  interpreted 
the term in the section  503(b) context.  See, e.g.,  Application 
for Review of  Southern California  Broadcasting Co.,  Memorandum 
Opinion and  Order,  6  FCC Rcd  4387,  4388  (1991)  (``Southern 
California Broadcasting Co.'').  The Commission may also assess a 
forfeiture for  violations  that  are merely  repeated,  and  not 
willful.  See,  e.g.,  Callais  Cablevision,  Inc.,  Grand  Isle, 
Louisiana, Notice of Apparent Liability for Monetary  Forfeiture, 
16 FCC Rcd 1359  (2001) (issuing a  Notice of Apparent  Liability 
for, inter alia,  a cable television  operator's repeated  signal 
leakage).  ``Repeated'' merely means  that the act was  committed 
or omitted more than once, or lasts more than one day.   Southern 
California Broadcasting  Co., 6  FCC Rcd  at 4388,  ¶ 5;  Callais 
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.    
21 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
22 See, e.g.,  SBC Communications, Inc.,  Apparent Liability  for 
Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  7589,  7591  ¶   4 
(2002)(forfeiture paid). 
23 U.S. CONST., amend. I; See Action for Children's Television v. 
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
24 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.''   FCC   v. 
Pacifica Foundation, 438 U.S.  726 (1978).  See  also ACT I,  852 
F.2d at 1339; Action for  Children's Television v. FCC, 932  F.2d 
1504, 1508 (D.C. Cir.  1991), cert. denied,  503 U.S. 914  (1992) 
(``ACT II''); Action for Children's  Television v. FCC, 58 F.  3d 
654 (D.C. Cir. 1995), cert.  denied, 516 U.S. 1043 (1996)  (``ACT 
III'').     
25 ACT I, 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  may 
say and hear.'').  See also id. at 1340 n. 14 (``the  potentially 
chilling  effect  of the  FCC's generic  definition of  indecency 
will be  tempered  by  the  Commission's  restrained  enforcement 
policy.'').
26 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)).  
27 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, 
8002, ¶¶ 7-8 (2001) (emphasis in original).
28 Young Response at 6.
29  The  ``contemporary  standards  for  the  broadcast  medium'' 
criterion is  that  of an  average  broadcast listener  and  with 
respect  to  Commission   decisions,  does   not  encompass   any 
particular geographic area.  See  Indecency Policy Statement,  at 
8002, ¶ 8 and n. 15.
30 Id at 8002, ¶ 9 (emphasis in original).   
31 Indecency Policy Statement at 8002-15, ¶¶ 8-23.  
32 Id. at 8003, ¶ 10.
33 Id. at 8009, ¶ 19  (citing Tempe Radio, Inc (KUPD-FM), 12  FCC 
Rcd 21828  (MMB 1997)  (forfeiture  paid) (extremely  graphic  or 
explicit nature of references to sex with children outweighed the 
fleeting  nature  of  the  references);  EZ  New  Orleans,   Inc. 
(WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same)). 
34 Indecency Policy Statement,  at 8010, ¶  20 (``the manner  and 
purpose  of  a  presentation  may  well  preclude  an   indecency 
determination even though  other factors,  such as  explicitness, 
might weigh in favor of an indecency finding'').
35 Young  cites Flambo  Broadcasting, Inc.  (KFMH-FM), Notice  of 
Apparent Liability for Monetary Forfeiture,  9 FCC Rcd 1681  (MMB 
1994).  However, in that case, no action was taken with regard to 
a radio station's broadcast of  sexual material in a crude  joke, 
because there was a conflict  as to what was actually  broadcast, 
and no tape or other evidence to establish the language broadcast 
and when the licensee cut  off the outside caller's rendition  of 
the joke.   Nevertheless,  assuming that  the  joke was  cut  off 
immediately, the staff of the  then-Mass Media Bureau found  that 
it would not have been actionably indecent because it was  brief, 
live, unscripted and  from an outside  source.  Young also  cites 
L.M. Communications of South Carolina, Inc. (WYBB(FM)), Notice of 
Apparent Liability for Monetary Forfeiture,  7 FCC Rcd 1595  (MMB 
1992), in which a fleeting and an isolated utterance, within  the 
context of  a  live  and spontaneous  broadcast,  was  found  not 
actionably indecent. See also Indecency Policy Statement, 16  FCC 
Rcd at 8009, ¶ 18, setting forth the utterance broadcast in  L.M. 
Communications:  ``The hell I did, I drove the mother-fucker, oh. 
Oh.'' In addition,  Young cites  a contested  license renewal  in 
which a  news announcer's  utterance,  ``Ooops, fucked  that  one 
up,'' was found  not to warrant  further action in  light of  the 
isolated and accidental nature  of the broadcast. Lincoln  Dellar 
(KPRL(AM) and KDDB(FM)),  8 FCC  Rcd 2582, 2585 ¶ 26 (MMB  1993).  
These cases are distinguishable because there was no finding that 
the material, in context, was pandering, titillating or  intended 
to shock the audience.  
36 Id.  at Attachment  2,  ¶ 4  (Declaration of  KRON-TV's  then-
Executive Producer stating that she ``gave great consideration to 
the wisdom of such an interview.'').
37  CBS  Radio  License,  Inc.  (WLLD(FM)),  Notice  of  Apparent 
Liability for Monetary Forfeiture, 15  FCC Rcd 23881, 23883, ¶  8 
(EB 2000)(given licensee's awareness of the actual language  used 
in performers' recordings,  it should have  taken precautions  to 
avoid airing material meeting  the indecency definition during  a 
live, unscripted broadcast),  Apparent Liability for  Forfeiture, 
Forfeiture Order, 16 FCC Rcd  4825 (EB 2001), Memorandum  Opinion 
and Order denying reconsideration of Forfeiture Order, 17 FCC Rcd 
18339 (EB 2002)(application for review pending); Regent  Licensee 
of Flagstaff, Inc., (KZGL(FM)), Notice of Apparent Liability  for 
Monetary  Forfeiture,  15   FCC  Rcd  17286,   17288,  ¶  9   (EB 
2000)(forfeiture paid).  
38 Young Response at 2 and Attachment 2, ¶ 6.       
39 Id.  at Exhibit C, 8:17 a.m.
40 Id. at Exhibit C, 8:19 a.m.
41 Id.  at Exhibit C, 8:21 a.m.
42 Id.  at Exhibit C, 8:22 a.m.
43 Id.
44 Id.  
45 Id. at 10.
46 Id. at 10-11, citing WPBN/WTOM License Subsidiary, Inc. (WPBN-
TV and WTOM-TV), 15 FCC Rcd 1838 (2000).
47 WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1839-40,  ¶¶ 
3,13. 
48 See ¶ 13, supra.  
49 See, e.g., Emmis Radio License Corporation (WKQX(FM)),  Notice 
of Apparent Liability for Monetary  Forfeiture, 17 FCC Rcd  5263, 
5267  ¶  13  (EB   2002),  Apparent  Liability  for   Forfeiture, 
Forfeiture  Order,  17  FCC  Rcd  21697  (EB  2002)(petition  for 
reconsideration of  Forfeiture  Order pending);  Citicasters  Co. 
(KEGL(FM)), Notice of Apparent Liability for Monetary Forfeiture, 
16 FCC Rcd 7546, 7547, ¶6 (EB 2001) (forfeiture paid) (licensee's 
warnings to listeners  that program may  contain material  ``more 
suitable for  adults'' has  no bearing  on whether  a  forfeiture 
should be imposed for material that is actionably indecent).  
50  See, e.g., AT&T  Wireless Services, Inc.,  17 FCC Rcd  21866, 
21871 (2002) (remedial actions not a basis for mitigation);  Eure 
Family Limited  Partnership, 17  FCC Rcd  21861 (2002)  (licensee 
responsible for actions of its employees).
51 See ACT III, 58 F.3d at 660-63.    
52 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).  The Commission recently  amended its rules to  increase 
the maximum penalties  to account  for inflation  since the  last 
adjustment  of  the  penalty  rates.   The  new  rates  apply  to 
violations that occur or continue  after November 13, 2000.   See 
Order, In  the Matter  of  Amendment of  Section 1.80(b)  of  the 
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect 
Inflation, 15 FCC Rcd 18221 (2000).
53 Forfeiture Policy Statement, 12 FCC Rcd at 1710-01, ¶ 27.
54 47 C.F.R. § 1.80.
55 See 47 C.F.R. § 1.1914.
56 Consistent  with  section 503(b)  of  the Act  and  consistent 
Commission  practice,  for   the  purposes   of  the   forfeiture 
proceeding initiated by this NAL,  Young shall be the only  party 
to this proceeding.