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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-02-IH-0261
) NAL Acct. No. 2004 3208
0011
CLEAR CHANNEL BROADCASTING ) FRN # 0001587971
LICENSES, INC. )
)
Licensee of Stations )
WPLA(FM), Callahan, Florida ) Facility ID # 51975
WCKT(FM), Port Charlotte, Florida )
(Formerly Station WRLR(FM)) ) Facility ID # 35213
)
CITICASTERS LICENSES, L.P. ) FRN # 0003017423
)
Licensee of Station )
WXTB(FM), Clearwater, Florida ) Facility ID # 11274
)
CAPSTAR TX LIMITED PARTNERSHIP ) FRN # 0003474947
)
Licensee of Station )
WRLX(FM), West Palm Beach, Florida ) Facility ID # 20442
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 26, 2004 Released: January
27, 2004
By the Commission: Chairman Powell, Commissioners Martin
and Adelstein issuing separate statements; Commissioner
Copps dissenting and issuing a separate statement.
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
the captioned licensees, all of which are subsidiaries of
Clear Channel Communications, Inc. (``Clear Channel''),
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully and repeatedly airing indecent
material over the captioned stations during the July 19,
November 14, 19, 26 and 27 and December 27, 2001, broadcasts
of the ``Bubba the Love Sponge'' program. Furthermore, we
find that they each appear to have failed to maintain copies
of certain required documents in the public inspection files
of each of their respective captioned stations, in apparent
willful violation of Section 73.3526(e)(10) of the
Commission's rules.2 Based on the totality of the evidence
before us and Clear Channel's history of transgressions
relating to the broadcast of indecent material over stations
licensed to its subsidiaries, we conclude that Clear Channel
is apparently liable for a monetary forfeiture in the amount
of Seven Hundred Fifty-Five Thousand Dollars ($755,000), the
statutory maximum of $27,500 each for 26 indecency
violations ($715,000), and the base amount of $10,000 each
for four public file violations ($40,000).
II. BACKGROUND
2. This proceeding arises out of a series of formal
complaints filed on behalf of Douglas Vanderlaan against
Clear Channel alleging: (1) indecency violations; (2) public
inspection file violations; (3) improper intimidation by
Clear Channel against the complainant; and (4) the promotion
and glorification of the use of illegal drugs in Clear
Channel's broadcasts and on its web site.3 The Enforcement
Bureau (the ``Bureau'') issued a series of letters of
inquiry4 and the record includes responses by Clear Channel5
and by the complainant, to Clear Channel's responses.6
III. DISCUSSION
A. Indecency Analysis
3. 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.7 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.''8 In
addition, consistent with a subsequent statute and court
case,9 Section 73.3999 of the Commission's rules provides
that radio and television stations shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.
4. As an initial matter, we find that all of the
seven segments at issue in this NAL were broadcast during
this prohibited time period, at the time of day and on the
specific dates alleged by Mr. Vanderlaan in his First
Complaint, 10 albeit not by all four of the captioned
stations. In this regard, Clear Channel has acknowledged
that segments 1, 2 and 7 were indeed broadcast, and that the
transcripts for these segments submitted by Mr. Vanderlaan
are accurate. 11 Clear Channel states that it did not
retain audio recordings or transcripts of its own for the
broadcasts encompassed by the remaining three segments,
segments 3, 4, 5 and 6. Consequently, as to those segments,
Clear Channel refuses to ``admit or acknowledge that the
material in the transcripts provided by Mr. Vanderlaan aired
as he alleges.''12 However, based upon the evidence before
us, including Clear Channel's failure to refute adequately
Mr. Vanderlaan's allegations, we find that Segments 3, 4, 5
and 6 were also broadcast at the time and on the dates
indicated in the First Complaint, and that the transcripts
for those segments accurately depict those broadcasts.13
Clear Channel concedes that Stations WXTB(FM), WRLX(FM) and
WPLA(FM) regularly aired the ``Bubba the Love Sponge''
program during the entire period of time encompassed by all
seven segments and does not claim that any of the stations
edited the show. Consequently, we find that Stations
WXTB(FM), WRLX(FM) and WPLA(FM) broadcast all seven of the
segments, as alleged. Clear Channel, however, represents
that Station WCKT(FM) did not begin carrying the ``Bubba the
Love Sponge'' program until October 29, 2001.14 Because
segments 1 and 2 were broadcast before WCKT(FM) commenced
airing the program, we find that the station broadcast only
segments 3 through 7.
5. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.15 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.16 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.17
6. 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.18
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 definition -- that 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.19
7. As an initial matter, all of the seven program
segments, in one manner or another, unquestionably involved
on-air discussions relating to descriptions or depictions of
sexual organs, excretory organs and/or activities of a
sexual nature. The broadcasts involved conversations about
such things as oral sex, penises, testicles, masturbation,
intercourse, orgasms and breasts. Clear Channel does not
dispute that the broadcasts involved such descriptions or
depictions.20 Accordingly, we conclude that each of the
segments that were broadcast satisfies the first prong of
our indecency analysis.
8. Having satisfied the first prong, we now turn to
an analysis of whether the material in the seven segments
subject to this NAL satisfies the second prong of the
Commission's two-part indecency analysis - that is, whether
the broadcasts were patently offensive as measured by
contemporary community standards for the broadcast medium.21
In our assessment of whether broadcast material is patently
offensive, ``the full context in which the material appeared
is critically important.''22 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.23 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.''24 In particular cases, the
weight of one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive
and consequently indecent,25 or, alternatively, removing the
broadcast material from the realm of indecency.26
9. We turn now to an analysis of these factors as
they relate to each segment,27 to determine whether the
material that was broadcast, taken in context, is patently
offensive as measured by contemporary community standards
for the broadcast medium.
Segment 1 (aired July 19, 2001 between 6:30 and 8:30
a.m.):28 In this segment,29 skits in which the voices
of purported cartoon characters talk about drugs and
sex are inserted between advertisements for Cartoon
Network's Friday night cartoons that are identified as
``provocative adult cartoons to help you get your freak
on.'' The first skit begins when Shaggy tells Scooby
Doo that he needs crack cocaine but has no money to buy
it. Scooby Doo responds that Shaggy could
``su(bleep)ck d(bleep)ick'' to pay for the drugs. In
the next skit, Fat Albert, a/k/a Phat Diddy Daddy, gets
killed in a drive-by shooting after bragging that
Jennifer Lopez had been ``s(bleep)ing Diddy Daddy's
(bleep)ck the previous night. The third skit begins
with the theme music from ``The Jetsons'' cartoon show.
George Jetson then begins telling Jane that he no
longer needs Viagra because he got a ``Spacely Sprocket
(bleep)ck ring.'' After George flips a switch to
activate the device, sound effects indicate that the
device malfunctions, and the skit ends with George
calling for Jane to turn off the device. Next, Alvin
the Chipmunk complains that he hasn't ``been laid in
almost six weeks.'' Another chipmunk responds that his
problem is due to the ``f(bleep)cking pussy music we
play'' and begins to sing a more ``kick ass'' song
directing a ``filthy chipmunk-whore'' to ``[s]uck on my
(inaudible) Chipmunk (bleep)s,'' ``[p]ut `em in your
mouth and (bleep)uck `em.'' He continues by singing
``They taste like pistachios. They're warm and fuzzy.
Suck my (bleep).'' The song is interrupted by a final
advertisement for ``Cartoons with Balls.''
This segment contains sufficiently graphic and explicit
references to sexual and excretory organs and
activities to satisfy the first criterion of our
contextual analysis. Such sexual references are found
in each of the skits and are repeated throughout the
segment, satisfying the second factor of our contextual
analysis. Finally, the use of cartoon characters in
such a sexually explicit manner during hours of the day
when children are likely to be listening is shocking
and makes this segment patently offensive. It is
foreseeable that young children would be particularly
attentive listeners to this segment because of the
character voices and the cartoon theme music used in
the segment. The calculated and callous nature of the
stations' decision to impose this predictably offensive
material upon young, vulnerable listeners is
particularly compelling and weighs heavily in our
analysis. Thus, the segment also satisfies the third
factor of our contextual analysis. Consequently, this
segment is apparently indecent.
Segment 2 (July 19, 2001, between 6:30 and 8:14 a.m.):
In this segment,30 a male applicant for a job as an
underwear model calls the model search hotline and
describes his as the ``perfect penis,'' so gorgeous
that ``[e]very f(bleep)ing, every -- every ounce of
f(bleep)cking co(bleep) purple (inaudible) of it''
``should be hanging in the f(bleep)cking Louvre,'' and
so strong that it can lift a 25-pound weight and can
split his pants like the Incredible Hulk. Such vivid
descriptions of the caller's penis satisfy the first
criterion of our contextual analysis. The entire
segment discusses the man's penis, and graphic
descriptions of it are referenced throughout the
segment. Thus, the second criterion of the contextual
analysis is also satisfied. The sole purpose of these
vivid descriptions apparently is to shock and titillate
listeners. Thus, the third criterion of our contextual
analysis is satisfied. Because this segment repeats
graphic and explicit descriptions of a sexual organ in
an effort to titillate listeners, it appears to be
patently offensive and indecent.
Segment 3 (November 14, 2001, between 7:00 and 8:55
a.m.): In this segment,31 one of the men participating
in the on-air discussion is Ned, a self-described
``loud masturbator.'' He views the act of masturbating
in public as a performance and states that he looks as
though he's having a ``grand mal seizure'' when he does
it. When asked to do so by the host, Ned, with
increasing drum beat rhythms as an accompaniment,
reenacts masturbating and reaching orgasm. Despite the
use of euphemisms such as ``wax[ing] your carrot'' when
referring to masturbation, and ``sparky'' when
referring to a penis, the sexual references in the
segment are unmistakable and sufficiently explicit to
satisfy the first criteria of our contextual analysis.
The entire segment dwells at length on masturbation.
Thus, the second criterion of our contextual analysis
is also satisfied. Finally, the participants'
discussions of masturbating styles and techniques, and
Ned's simulation of such a sex act, make it apparent
that the segment was used to titillate and shock the
program's listeners. In doing so, this segment
satisfies the third criterion of our contextual
analysis. Accordingly, we find that this segment
appears to be patently offensive and indecent.
Segment 4 (November 19, 2001, between 8:00 and 9:00
a.m.): In this segment,32 three males interview a
female caller about her sexual exploits with
``Spider,'' another man. They discuss the length of
Spider's penis, the length of time their sexual
encounter lasted, and the sexual techniques they used.
After the caller indicated that she had given Spider
oral sex, one host responded that he hoped Spider had
not given her oral sex because heavier women, like her,
have ``some cheese down there.'' The hosts then began
ridiculing the caller about her size and asked ``Are
you like a Ball Park Plank -- Frank, you p[l]ump when
we bang ya?'' The conversation between the hosts and
the caller was sufficiently explicit and graphic to
convey unmistakably the sexual meaning of the
euphemisms they used and to satisfy the first criterion
of our contextual analysis. The participants talked at
length about sexual and excretory activities and
organs. It was apparent that the purpose of the call
was to discuss the sexual organs and activities of the
caller and Spider. As a consequence, the discussion
dwelled upon the subjects of sexual organs and
activities, and, thus, satisfies the second criterion
of our contextual analysis. Finally, it is apparent
that the discussion was titillating and shocking with
respect to the audience. Thus, this segment meets the
third and final criterion of our contextual analysis.
As a consequence, we find that the segment appears to
be patently offensive and indecent.
Segment 5 (November 26, 2001, between 7:00 and 9:00
a.m.): In this segment,33 a male host and two male
cohorts interview or talk with two female studio guests
who are participants in a contest to win breast implant
surgery. The host takes pictures of the women and
directs and describes their poses, e.g., directing one
to let him ``get a little more ass,'' in the picture
and, later, to pose so that he can take a ``front panty
shot.'' A discussion of oral sex begins when the host
tells Hillary, one of the women, that long fingernails
like hers ``feel so good on my boys,'' and that his
genital area is shaved. In response, Hillary states,
``That's good. No -- no hairs in the teeth and
stuff.'' She then discusses her preference for giving,
rather than getting, oral sex and declares herself to
be a ``big oral queen'' who could ``go a half-hour
solid,'' before her ``cheeks would hurt.'' She
discusses her sexual escapades with two men, her
inability to reach orgasm and her frequent
masturbation. During the ensuing discussion the host
encourages Hillary to masturbate on air while he
watches and gives a ``play by play.'' To encourage her
to cooperate, he tells her that masturbating on air
would increase her chances of winning breast implants
and, when she continues to refuse, he proposes that he
or the other female guest give her manual sex during
the broadcast.
The graphic and explicit descriptions of sexual or
excretory organs and activities contained in this
segment satisfy the first criterion of our contextual
analysis. The repetition of these descriptions and
other sexual references throughout the segment satisfy
the second criterion of our contextual analysis. The
continued and repeated explicit and graphic sexual
references clearly demonstrate the shocking and
titillating nature of the material, thus satisfying the
third criterion of our contextual analysis.
Consequently, we find that this segment appears to be
patently offensive and indecent.
Segment 6 (November 27, 2001, between 7:30 and 9:00
a.m.): In this segment,34 a male host and a co-host
interview two female studio guests who are participants
in the ``Twelve Boobs of Christmas'' contest to win
breast implant surgery. The segment begins with the
host taking pictures of the contestants' ``boobs'' in
order to ``facilitate you on some new boobies, baby.''
He then begins asking about their sexual activities and
is impressed that one of the women, when giving ``oral
sex,'' does not ``recycle,'' or ``waste a drop.'' This
segment is sufficiently explicit and graphic to meet
criteria one of our contextual analysis. Because the
sexual descriptions and references are repeated
throughout the segment, criterion two of our contextual
analysis is also satisfied. Finally, these sexual
references and discussions appear to be inserted only
to titillate the audience. Thus, criterion three of
our contextual analysis is also met. Consequently, we
find that this segment appears to be patently offensive
and indecent.
Segment 7 (December 27, 2001, between 8:00 and 9:00
a.m.): In this segment,35 Bubba and two male co-
hosts discuss the abnormally large size of his
``balls,'' while a singer and chorus sing about his
testicles in explicit and graphic detail. The
euphemism, ``balls,'' is a common one, generally known
to mean testicles, a sexual organ. Descriptions, such
as those stating that Bubba's ``balls,'' which are the
size of ``cantaloupes'' or ``coconuts,'' are ``firm and
meaty'' with ``ingrown hairs,'' are sufficiently
graphic to meet the first contextual criteria. Such
descriptions are repeated at length during the entire
segment, satisfying the second contextual criterion.
Finally, the material satisfies the third criterion of
our contextual analysis because it is pandering,
titillating and shocking to the program's listeners.
Thus, we find that this segment appears to be patently
offensive and indecent.
10. Based on the foregoing, we find that the material
that was broadcast in these seven segments satisfies the
second prong of our two-part test and, thus, appear patently
offensive, as measured by contemporary community standards
for the broadcast medium. Because we have found these seven
segments to have apparently satisfied both prongs of our two
part test, we conclude that the material contained
apparently indecent speech.
11. Each of the segments was broadcast between 6 a.m.
to 10 p.m., at a time of day when the broadcast of indecent
material is explicitly prohibited by Section 73.3999 of the
Commission's rules. Because these segments appear to have
contained indecent speech and were broadcast at times of the
day when indecent speech is proscribed, each of the
broadcasts appears to be legally actionable.36 We find,
therefore, that three of the captioned stations (Stations
WXTB(FM), WRLX(FM) and WPLA(FM)) each broadcast seven
apparently indecent segments,37 in apparent willful and
repeated violation of Title 18 U.S.C. § 1464 and Section
73.3999 of the Commission's rules. In addition, the fourth
captioned station (Station WCKT(FM)), which began carrying
the ``Bubba the Love Sponge'' program subsequent to the
other stations, broadcast five of the apparently indecent
segments (Segments 3, 4, 5, 6 and 7),38 also in apparent
willful and repeated violation of Title 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules.39
B. Public Inspection File
12. Section 73.3526(e)(10) of the Commission's rules
requires broadcast licensees to maintain a public inspection
file containing specific types of information. Section
73.3526(e)(10) specifies that, among the documents that must
be included in the file, is ``material having a substantial
bearing on a matter which is the subject of an FCC
investigation or complaint to the FCC . . .''40 Such
material must be retained in a station's public inspection
file pending written notification that it may be
discarded.41 Where lapses occur in maintaining the public
inspection file, neither the negligent acts nor omissions of
station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a
licensee's rule violation.42
13. It is beyond dispute that, on August 22, 2001,
each of the four captioned stations failed to include copies
of documents relating to Mr. Vanderlaan's First Complaint in
its public inspection file. In declarations accompanying
the Second Complaint, Mr. Vanderlaan, Dr. David D. Swanson,
Kathy Taunton and Sally Oesch each states that, on that
date, he or she visited one of the captioned stations during
normal business hours, reviewed its public inspection file,
and determined that the file did not contain a copy of the
First Complaint or any documents related to it.43 Although
Clear Channel does not dispute these allegations, it argues
that Station WXTB(FM) should be relieved of liability for
its failure to have maintained the First Complaint in its
public inspection file because a copy of the document was
located elsewhere in the station after the requester had
specifically identified and requested it.44 This argument
lacks merit. The Commission requires that such documents be
maintained in the public inspection file. 45 The obvious
intent of the rule is to facilitate public access to such
documents. To require an individual member of the public to
examine a station's public inspection file and then identify
for station personnel what is missing from it clearly is
inconsistent with the intent of the rule section.
14. Based on the information before us, we find that
the captioned licensees at each of their respective
captioned stations failed to maintain certain required
documents in their respective public inspection files, in
apparent willful violation of Section 73.3526(e)(10) of the
Commission's rules.
C. Other Allegations
15. In his First Complaint, Mr. Vanderlaan alleges
that Clear Channel engaged in intimidating and abusive
conduct after he had filed his First Complaint with the
Commission, by threatening him with legal action and
complaining to his employer.46 A finding of
``[i]ntimidation or harassment of witnesses requires threats
of reprisals or some other unnecessary and abusive conduct
reasonably calculated to dissuade a witness from continuing
his or her involvement in a proceeding.''47 In this case,
Mr. Vanderlaan presents no evidence to corroborate his claim
that Clear Channel contacted his employer and provides only
a copy of his attorney's response to a letter purportedly
from the attorney for Todd ``Bubba'' Clem (the host of the
program) to corroborate his allegation that he was
threatened with legal action by Clear Channel. In fact, Mr.
Vanderlaan presents no evidence that the captioned licensees
or Clear Channel made, or were even aware of, the contacts
about which he complains. Consequently, there is
insufficient evidence to support a finding that Clear
Channel or the captioned licensees engaged in intimidation
or abuse. Accordingly, we find no merit to this allegation.
16. In both his First Complaint and Third Complaint
and Supplement, Mr. Vanderlaan alleges that Clear Channel
promotes the use of illegal drugs.48 Consistent with the
Commission's limited role overseeing programming content
mandated by the First Amendment and Section 326 of the
Act,49 there is no rule or statutory provision barring a
licensee from airing material referencing drug use.50 Thus,
the allegations concerning this material do not warrant
enforcement action.
IV. PROPOSED FORFEITURE
17. Having determined that the captioned licensees
apparently willfully and/or repeatedly violated 18 U.S.C. §
1464 and Sections 73.3999 and 73.3526(e)(10) of the
Commission's rules, we turn to an analysis of whether, and
to what extent, we should propose sanctions in this
instance. Under Section 503(b)(1) of the Act,51 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.52 In order to impose such a 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 penalty should be imposed.53 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, regulation or order.54
18. In the instant case, we have determined that three
of the captioned stations (Stations WXTB(FM), WRLX(FM) and
WPLA(FM)) each broadcast seven apparently indecent segments
of the ``Bubba the Love Sponge'' program, in apparent
willful and repeated violation of Title 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules, and that the
remaining captioned station (Station WCKT(FM)), which began
carrying the ``Bubba the Love Sponge'' program after the
other stations, broadcast five apparently indecent segments,
in apparent willful and repeated violation of Title 18
U.S.C. § 1464 and Section 73.3999 of the Commission's rules.
Stated otherwise, we conclude that the captioned licensees
apparently violated 18 U.S.C. § 1464 and Section 73.3999 of
the Commission's rules on a total of 26 separate occasions.
Consequently, based upon our review of the record in this
case, we conclude that Clear Channel, as the parent of each
licensee, is apparently liable for forfeitures based upon 26
willful and repeated violations of our indecency rules.55
19. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $7,000 for the transmission of
indecent material.56 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.''57
20. Based upon our review of the record before us, we
believe that an upward adjustment to the statutory maximum
of $27,500 for each of the 26 apparent indecency violations
is warranted. The large number of apparent violations here,
combined with Clear Channel's repeated broadcasts in the
past of apparently indecent material over multiple stations
licensed to its subsidiaries, evidences a pattern of
violations that justifies a proposed forfeiture of the
statutory maximum.58
21. Because we find that Clear Channel, through its
subsidiary captioned licensee companies, apparently violated
18 U.S.C. § 1464 and Section 73.3999 of the Commission's
rules on 26 separate occasions, and that each such violation
is subject to an apparent forfeiture in the amount of
$27,500, we conclude that Clear Channel is apparently liable
for a forfeiture in the amount of $715,000 for willfully and
repeatedly broadcasting indecent material during various
segments of the ``Bubba the Love Sponge'' program over the
captioned stations. Particularly in light of Clear
Channel's history of violations of the indecency rules, we
also take this opportunity to reiterate our recent
admonition (which took place after the behavior at issue
here) that serious multiple violations of our indecency rule
by broadcasters may well lead to the commencement of license
revocation proceedings.59 We expect Clear Channel in
particular to take this admonition seriously.
22. We also have previously determined that the four
captioned stations failed to maintain certain required
documents in their respective public inspection files, in
apparent willful violation of Section 73.3526(e)(10) of the
Commission's rules. Based upon the factors articulated in
Section 503(b)(2)(D) of the Act and the base forfeiture
amount specified in the Forfeiture Policy Statement for
violations of the our public inspection file rules, we
conclude that a proposed forfeiture is warranted in the base
forfeiture amount of $10,000 for each of the four apparent
willful violations of Section 73.3526(e)(10) of the
Commission's rules, for a total of $40,000.
V. ORDERING CLAUSES
23. 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,60 that Clear Channel
Communications, Inc., the parent company of each of the
above-captioned licensees, is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the total amount of
Seven Hundred Fifty-Five Thousand Dollars ($755,000), for
willfully violating 18 U.S.C. § 1464 and Sections 73.3999
and 73.3526(e)(10) of the Commission's rules.61
24. 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, Clear Channel Communications,
Inc. SHALL PAY the full amount of the proposed forfeiture
against it or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
25. 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 Numbers
(``FRN'') referenced above and also should note the
NAL/Account Number referenced above.
26. 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.
27. 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.
28. 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. 20554.62
29. 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 Clear Channel
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 Clear Channel,
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 B of this Notice of
Apparent Liability. This information will be used for
tracking purposes only. Clear Channel'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 Clear Channel has questions
regarding any of the information contained in Attachment B,
it should contact OCBO at (202) 418-0990.
30. Accordingly, IT IS ORDERED, that the First
Complaint, Second Complaint and Third Complaint and
Supplement filed by Douglas Vanderlaan ARE GRANTED to the
extent indicated herein, AND ARE OTHERWISE DENIED, and the
complaint proceeding IS HEREBY TERMINATED.
31. IT IS FURTHER ORDERED, that copies of this Notice
of Apparent Liability For Forfeiture shall be sent, by
Certified Mail Return Receipt Requested, to Mr. Kenneth E.
Wyker, Senior Vice President & General Counsel, Clear
Channel Communications, Inc., c/o Clear Channel Worldwide,
200 East Basse Road, San Antonio, Texas 78209-8328, with a
copy to Clear Channel's counsel, John M. Burgett, Esq., at
Wiley, Rein & Fielding, LLP, 1776 K Street, N.W.,
Washington, D.C., 20006, and to Mr. Douglas Vanderlaan, 8114
Parkridge Circle South, Jacksonville, Florida 32211, with a
copy to his counsel, Arthur V. Belendiuk, Esq., at Smithwick
& Belendiuk P.C., 5028 Wisconsin Avenue, N.W., #301,
Washington, D.C. 20016.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
Attachment A
Excerpts From WPLA(FM) Program Transcript
Provided As Exhibit 2 to April 3, 2002,
Complaint of Douglas Vanderlaan
Attachment B
FCC List of Small Entities
October 2002
ATTACHMENT B
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: Clear Channel Broadcasting Licenses, Inc., Licensee of
Station WPLA(FM), Callahan, Florida; WCKT(FM), Port
Charlotte, Florida (Formerly Station WRLR(FM)); Citicasters
Licenses, L.P., Licensee of Station WXTB(FM), Clearwater,
Florida; Capstar TX Limited Partnership, Licensee of Station
WRLX(FM), West Palm Beach, Florida.
Seven broadcasts, twenty-six indecency violations, four
public file violations and fines equaling $755,000. By
today's action, we provide yet another example of this
Commission's commitment to enforce its rules and
regulations¾especially as it relates to indecent programming
engulfing our broadcast airwaves.
As the Commission with the strongest enforcement record
in decades, it should come as little surprise that this
Commission's indecency enforcement has dwarfed its
predecessors. I am proud of the fact that over the past
three years, we have proposed nearly twice the dollar amount
of indecency fines than the previous two Commissions
combined (over seven years) and ten times the amount of
fines proposed by the last Commission.
Now is not, however, a time to rest on our laurels and
no broadcaster should believe that we will. Indeed, due to
the leadership on this issue from Commissioner Martin, the
Commission will soon begin considering fines for each
separate utterance found indecent in a broadcast. In
addition, we will continue to look to Congress to
dramatically increase the enforcement penalties available to
us to prosecute clear indecency violations. I applaud
Chairman Upton, Chairman Tauzin, Congressmen Dingell and
Markey, Chairman McCain, Senator Hollings and the many
others on both sides of the aisle in Congress for providing
vital leadership on this issue.
As the Commission continues the challenging task of
balancing the protections of the First Amendment with the
need to protect our young, these increased enforcement
actions will allow the Commission to turn what is now a
``cost of doing business'' into a significant ``cost for
doing indecent business.''
SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS,
DISSENTING
Re: Clear Channel Broadcasting Licenses, Inc., Licensee of
Stations WPLA(FM), Callahan, Florida, and WCKT(FM), Port
Charlotte, Florida (Formerly Station WRLR(FM)); Citicasters
Licenses, L.P., Licensee of Station WXTB(FM), Clearwater,
Florida; Capstar TX Limited Partnership, Licensee of Station
WRLX(FM), West Palm Beach, Florida, Notice of Apparent
Liability for Forfeiture
In this case, four Clear Channel stations aired on
several occasions graphic and explicit sexual content as
entertainment. The extreme nature of these broadcasts and
the fact that the show at issue has been the subject of
repeated indecency actions gives the FCC the obligation to
take serious action. Instead, the majority proposes a mere
$27,500 fine for each incident. Such a fine will be easily
absorbed as a ``cost of doing business'' and fails to send a
message that the Commission is serious about enforcing the
nation's indecency laws. ``Cost of doing business fines''
are never going to stop the media's slide to the bottom.
To fulfill our duty under the law, I believe the
Commission should have designated these cases for a hearing
on the revocation of these stations' licenses, as provided
for by Section 312(a)(6) of the Communications Act. I am
discouraged that my colleagues would not join me in taking a
firm stand against indecency on the airwaves.
If the Commission can't bring itself to go to a
revocation hearing, at least the Commission should have used
its current statutory authority to impose a higher and
meaningful fine. The Commission could have proposed a fine
for each separate ``utterance'' that was indecent, rather
than one fine for each lengthy segment. As Commissioner
Martin points out, such an approach would have led to a
significantly higher fine.
Here, four Clear Channel stations ran several segments
of the ``Bubba the Love Sponge'' show which contained
graphic and explicit sexual content. The majority admits
that each of these stations appears to have egregiously and
extensively violated the statutory ban on broadcast of
indecent material numerous times. But then the majority
inexplicably determines that the appropriate recourse for
this filth is a $27,500 fine for each violation.
The majority states that, in light of Clear Channel's
history of violations of the indecency rules, other serious
multiple violations ``may well lead to license revocation
proceedings.'' The majority fails to acknowledge that not
just Clear Channel, but the ``Bubba the Love Sponge'' show,
has been the subject of at least three previous fines for
violating our nation's indecency laws. This is not even
``three strikes and you are out'' enforcement. How many
strikes are we going to give them?
This case may well lead broadcasters to believe that
this Commission will never use the enforcement authority it
currently has available to it. The message to licensees is
clear. Even egregious repeated violations will not result
in revocation of a license. Rather, they will result only
in a financial penalty that is merely a cost of doing
business.
The time has come for this Commission to take a firm
stand against the ``race to the bottom'' as the level of
discourse on the public's airwaves gets progressively
coarser and more violent. Our enforcement actions should
convince broadcasters that they cannot ignore their
responsibility to serve the public interest and to protect
children. The FCC's action today fails to do so.
SEPARATE STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Clear Channel Broadcasting Licenses, Inc., Licensee of
Station WPLA(FM), Callahan, Florida, WCKT(FM), Port
Charlotte, Florida; Citicasters Licenses, L.P.,
Licensee of Station WXTB(FM), Clearwater, Florida;
Capstar TX Limited Partnership, Licensee of Station
WRLX(FM), West Palm Beach, Florida, Notice of Apparent
Liability for Forfeiture
I agree with this Notice's conclusion that the
licensees at issue apparently violated our indecency rule
and public file requirements.
I write separately to emphasize again that we could,
and should, be placing higher fines on those who broadcast
indecent programming during the hours when children may be
watching or listening, in violation of our rules and
statute. The governing statute targets ``whoever utters''
indecent or profane language, and the Commission should not
continue to treat an entire program full of indecent
``utterances'' as just one violation.63 We should not
continue to give a broadcaster who violates our indecency
rule at the beginning of a program a ``free pass'' for the
next two hours.
In this case, I would have found numerous violations,
for a total indecency fine significantly higher than that
proposed (it appears there were at least 49 indecency
violations, for a total forfeiture exceeding $1,000,000).
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Clear Channel Broadcasting Licenses, Inc., Notice of
Apparent Liability for Forfeiture
The Commission has a duty to enforce statutory and
regulatory provisions restricting broadcast indecency. The
material broadcast by these four Clear Channel radio
stations is undeniably graphic and explicit in its sexual
content and clearly intended to shock listeners. Clear
Channel and, indeed, this particular ``Bubba the Love
Sponge'' program have been the subject of repeated
Commission indecency actions in the past. Given the
explicit nature of the broadcast material and the history of
prior offenses, this is the type of serious repeated
behavior that I believe would warrant initiation of license
revocation hearings.
In fairness, however, this material was broadcast in
2001. The Commission clarified in an April 2003 order that
it was broadening its range of enforcement approaches and
tools to combat indecency on our nation's public airwaves.
For this reason, I approve of today's Order as legally
appropriate. The egregious nature of the material clearly
warrants the statutory maximum $27,500 fine per violation.
While the Commission at all times has the authority to
initiate license revocation hearings or sanction for
multiple indecent utterances in a given program segment, it
can be argued that the Commission was not employing these
approaches at the time this material was broadcast.
Nonetheless, as we made clear last year, broadcasters are
now aware that the Commission will not hesitate to use its
full range of enforcement sanctions for indecent material
broadcast after April 2003.
I also acknowledge the importance of broadcasters
adhering to the public inspection file rules. Documents
pertaining to an FCC investigation are clearly within the
scope of the information that must be maintained in a manner
accessible to the listening public. In this case, each of
the stations inexplicably failed to include complaints
related to the airing of this material in their public
files.
A broadcast license is a public privilege. In return,
broadcasters have a responsibility to serve the public.
This public interest responsibility clearly encompasses
protecting children from indecency on the airwaves and
facilitating public access to documentation through which
the station can remain accountable to its local community
and listening public. These stations exhibited a blatant
disregard for both.
_________________________
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 47 C.F.R. § 73.3526(e)(10).
3 Complaint of Douglas Vanderlaan, dated April 3, 2002
(``First Complaint''); Second Complaint of Douglas
Vanderlaan, dated October 10, 2002 (``Second Complaint'');
Third Complaint and Supplement of Douglas Vanderlaan, dated
January 27, 2003 (``Third Complaint'').
4 Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, to Clear Channel
Broadcasting Licenses, Inc. and Citicasters Licenses, L.P.,
dated July 5, 2002 (``Initial LOI''); Letters from Maureen
F. Del Duca, Chief, Investigations and Hearings Division,
Enforcement Bureau, to Clear Channel Broadcasting Licenses,
Inc., Citicasters Licenses, L.P., Capstar TX Limited
Partnership and Kenneth E. Wyker, Senior Vice President &
General Counsel, Clear Channel Communications, Inc., dated
August 18, 2003 (``Second LOI'' and ``Third LOI'').
5 Letter from John M. Burgett, Esq., to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated July 15,
2002; Letter from Kenneth W. Wyker, Senior Vice President &
General Counsel, Clear Channel Communications, Inc., to
Marlene H. Dortch, Secretary, Federal Communications
Commission, dated August 1, 2002 (``Initial LOI Response'');
Letter from Kenneth W. Wyker, Senior Vice President &
General Counsel, Clear Channel Communications, Inc., to
Marlene H. Dortch, Secretary, Federal Communications
Commission, dated August 28, 2002 (``Supplement to Initial
LOI Response''); Letter from Richard W. Wolf, Vice
President, Clear Channel Communications, Inc., to Marlene H.
Dortch, Secretary, Federal Communications Commission, dated
September 16, 2003 (``Second LOI Response''); Letter from
Richard W. Wolf, Vice President, Clear Channel
Communications, Inc., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated September 16, 2003
(``Third LOI Response''); Letter from John M. Burgett, Esq.,
to Judy Lancaster, Esq., Investigations and Hearings
Division, Enforcement Bureau
6 Letter from Arthur V. Belendiuk, Esq., to Marlene H.
Dortch, Secretary, Federal Communications Commission, dated
August 13, 2002 (``First Vanderlaan Reply''); Letter from
Douglas G. Vanderlaan to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated September 24, 2003.
(``Second Vanderlaan Reply'')
7 See 47 U.S.C. § 326.
8 18 U.S.C. § 1464.
9 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992); Action for Children's Television
v. FCC, 58 F.3d 654 (D.C. Cir 1995), cert. denied, 516 U.S.
1043 (1996) (``Act III'').
10 See Attachment A.
11 Supplement to Initial LOI Response at 2.
12 Initial LOI Response at 1.
13 Infinity Broadcasting Corp. of Los Angeles (KROQ-FM),
Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶¶ 17-
18 (2002).
14 See Third LOI Response at 1.
15 U.S. CONST., amend. I; Action for Children's Television
v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
16 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''); ACT
III, 58 F.3d 654.
17 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.''); ACT
I, 852 F.2d at 1340, n.14 (``the potential chilling effect
of the FCC's general definition of indecency will be
tempered by the Commission's restrained enforcement
policy.'') See also United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813-15 (2000).
18 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)).
19 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).
20 See Initial LOI Response at 2-6. As a preface to its
analysis of each segment, Clear Channel states ``Although
the transcripts do include references and phrases of a
sexual nature, and while some may find such material to be
distasteful or offensive, these references and phrases alone
do not make the broadcasts indecent.'' Id. at 2.
21 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 WPBN/WTOM License
Subsidiary, Inc., 15 FCC Rcd 1838, 1841 (2000).
22 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9
(emphasis in original).
23 Id. at 8002-15, ¶¶ 8-23.
24 Id. at 8003, ¶ 10.
25 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)).
26 Id. 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'').
27 See Attachment A passim.
28 The complainant's transcript reflects bleeps of certain
offensive words. A review of the relevant tapes indicates
that the letters before the word ``(bleep)'' in many cases
were aired. However, although the transcript suggests
otherwise, a review of the relevant tape indicates that the
letters after the word ``(bleep)'' were completely bleeped.
In any event, our indecency finding is not based on airing
of the specific bleeped words.
29 See Attachment A at 1-2.
30 See Attachment A at 3-5.
31 See Attachment A at 5-7.
32 See Attachment A at 7-9.
33 See Attachment A at 9-21.
34 See Attachment A at 21-25.
35 See Attachment A at 26-28.
36 See ACT III, 58 F.3d at 660-63.
37 See supra ¶ 4.
38 Id.
39 The First Complaint also included allegations of
indecency with respect to three other broadcast segments.
We conclude that these broadcasts were not sufficiently
graphic and/or sustained to be considered indecent and are
denying the First Complaint with respect to these segments.
40 47 C.F.R. § 73.3526(e)(10).
41 Id.
42 See Padre Serra Communications, Inc., 14 FCC Rcd 9709
(1999) (citing Gaffney Broadcasting, Inc., 23 FCC 2d 912,
913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706
(1962)); Surrey Front Range Limited Partnership, 71 RR 2d
882 (FOB 1992) ("Surrey").
43 Second Complaint at Exhibits 1, 4. In the Declaration of
Ms. Taunton, who attempted to inspect the WXTB(FM) public
file, she states that, after specifically asking to see the
First Complaint, ``[a] copy of the Complaint was
subsequently found in the station manager's office and made
available for my review.'' Id. at Exhibit 3. However, it is
clear that, had Ms. Taunton not been aware of that document,
she would not have learned of it from her inspection of the
file, the purpose behind the requirement that it be included
in the file.
44 Third LOI Response at 2.
45 47 C.F.R. § 73.3526(e)(10).
46 See First Complaint at 15-16.
47 See Isothermal Community College, DA 03-3638, 2003 WL
22682096 (Enf. Bur. November 14, 2003) (citing Kaye-Smith
Enterprises, 98 FCC 2d 675, 682 (1984)); Hoffart v. FCC, 787
F.2d 675 (D.C. Cir. 1986) (citing Chronicle Broadcasting
Co., 19 FCC 2d 240, 244 (1969)).
48 See also Second Vanderlaan Reply.
49 47 U.S.C. § 326.
50 See, e.g., Licensee Responsibility to Review Records
Before Their Broadcast, Notice, 28 FCC 2d 409 (1971),
modified, Memorandum Opinion and Order, 31 FCC 2d 377
(1971), aff'd sub nom, Yale Broadcasting Co. v. FCC, 478
F.2d 594 (D.C. Cir. 1973), cert. denied, 414 U.S. 914
(1973).
51 47 U.S.C. § 503(b)(1).
52 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
14 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.
53 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
54 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
(2002) (forfeiture paid).
55 7 broadcasts x 3 stations (WXTB(FM), WRLX(FM) and
WPLA(FM)) = 21 violations + 5 broadcasts by WCKT(FM) = 26
violations.
56 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 has
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 Amendment of
Section 1.80(b) of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000).
57 The maximum forfeiture amount for a single violation for
the broadcast of apparently indecent material is $27,500.
47 C.F.R. § 1.80(b)(1).
58 See, e.g., AMFM Radio Licenses, LLC (WWDC(FM)), Notice of
Apparent Liability for Forfeiture, FCC 03-233 (rel. Oct. 2,
2003) (forfeiture paid); Citicasters Co. (KEGL(FM)), Notice
of Apparent Liability for Forfeiture, 16 FCC Rcd 7546 (Enf.
Bur. 2001) (forfeiture paid); Citicasters Co. (WXTB(FM)),
Forfeiture Order, 15 FCC Rcd 25453 (2000) (forfeiture paid);
Citicasters Co. (KSJO(FM)), Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 19095 (Enf. Bur. 2000) (forfeiture
paid); Citicasters Co. (KSJO(FM)), Notice of Apparent
Liability for Forfeiture, 15 FCC Rcd 19091 (Enf. Bur. 2000)
(forfeiture paid); Citicasters Co. (WXTB(FM)), Forfeiture
Order, 15 FCC Rcd 11906 (2000) (forfeiture paid).
59 See Infinity Broadcasting Operations, Inc.(WKRK-FM),
Forfeiture Order, 18 FCC Rcd 6915, 6919, ¶ 13 (2003); see
also AMFM Radio Licenses LLC (WWDC-FM), Notice of Apparent
Liability for Forfeiture, 18 FCC Rcd 19917, ¶16 (2003)
(forfeiture paid); Infinity Broadcasting Operations,
Inc.(WNEW(FM), Notice of Apparent Liability for Forfeiture,
18 FCC Rcd 19954, ¶ 19 (2003) (response pending).
60 47 C.F.R. § 1.80.
61 Station WXTB(FM), Station WRLX(FM) and Station WPLA(FM)
shall each be allocated the sum of Two Hundred Two Thousand
Five Hundred Dollars ($202,500.00) for six indecency
violations and one public inspection file violation (6 x
$27,500 = $192,500 + $10,000 = $202,500). The sum of One
Hundred Forty-Seven Thousand Five Hundred Dollars
($147,500.00) is allocated to Station WCKT(FM) for five
violations of the Commission's indecency rules and one
violation of the Commission's public inspection file rule [5
x $27,500 = $137,500 + $10,000 = $147,500).
62 See 47 C.F.R. § 1.1914.
63 See 18 U.S.C. § 1864 (``Whoever utters any obscene,
indecent, or profane language by means of radio
communication shall be fined under this title or imprisoned
not more than two years, or both''), 47 C.F.R. § 73.3999
(``No licensee of a radio or television broadcast station
shall broadcast on any day between 6 a.m. and 10 p.m. any
material which is indecent'').