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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
AMFM RADIO LICENSES, L.L.C. ) File No. EB-02-IH-0737
) NAL/Acct. No. 200432080019
Licensee of Station WIHT(FM), ) FRN #0001656586
Washington, D.C. ) Facility ID # 25080
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 20, 2004
Released: June 10, 2004
By the Commission: Commissioners Martin and Adelstein
issuing separate statements; Commissioner Copps dissenting
and issuing a statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that AMFM Radio Licenses, LLC
(``AMFM''), licensee of Station WIHT(FM), Washington, D.C.,
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully broadcasting indecent language.
Based upon our review of the facts and circumstances in
this case, we conclude that AMFM is apparently liable for a
monetary forfeiture in the amount of Twenty-Seven Thousand
Five Hundred Dollars ($27,500.00), the applicable statutory
maximum.
II. BACKGROUND
2. The Commission received a complaint from listener
Douglas Miller alleging that Station WIHT(FM) broadcast
indecent material on September 17, 2002, between 9:30 and
9:45 a.m.1 The complainant alleged that the station aired
a contest on its ``Hot Morning Mess'' program that invited
listeners to predict how large a man's penis would become
after applying a penile-enlargement device, and that the
broadcast was inappropriate for airing during the morning
hours.2 After reviewing the complaint, the staff issued a
letter of inquiry to the licensee.3
3. Clear Channel Communications, Inc. (``Clear
Channel''), AMFM's corporate parent, submitted a response
and included a compact disc containing the complained-of
program material.4 In this regard, Clear Channel states
that the material in question ``likely aired'' between the
hours of 9:00 and 10:00 a.m. on September 17, 2002.5 Clear
Channel argues that the subject matter and the language
used in the complained-of broadcasts were not actionably
indecent.6 Specifically, it contends that the material
broadcast, in context, was not patently offensive as
measured by contemporary community standards for the
broadcast medium.7
III. DISCUSSION
4. 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, because any
consideration of government action against allegedly
indecent programming must take into account the fact that
such speech is protected under the First Amendment.8 In
this regard, both 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.9
Thus, the First Amendment is a critical constitutional
limitation that demands that, in indecency determinations,
we proceed cautiously and with appropriate restraint.10
5. 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.''11 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.12 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.13
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.14 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.15
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.16 As we set forth in greater
detail below, we conclude under this standard that AMFM is
apparently liable for a forfeiture for its apparent willful
and repeated violations of 18 U.S.C. § 1464 and section
73.3999 of the Commission's rules.
7. 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.17
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.18
Clear Channel does not dispute that it aired material
describing or depicting a sexual organ.19 That material,
therefore, warrants further scrutiny to determine whether or
not it was patently offensive as measured by contemporary
community standards for the broadcast medium.20
8. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''21 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.22 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.''23 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,24 or, alternatively, removing the
broadcast material from the realm of indecency.25 In this
case, we have examined all three factors and have determined
that each weighs in favor of a finding that the broadcast
material was patently offensive. We note that, in
particular, the station's presentation of the material in a
manner that was pandering, titillating, and shocking weighs
heavily in our determination.26 We turn now to our analysis
of the three principal factors in our decision.
9. With respect to the Indecency Policy Statement's
first two factors, we find that the material dwelled on
explicit and graphic descriptions of male genitalia. During
the broadcasts, the ``Hot Morning Mess'' show personalities
tested the ``Pump Him Up'' penile-enlargement device on a
show sidekick, Tim ``Teapot'' Coburn, and discussed at
length, and in specific detail, whether the product worked
effectively in terms of adding length and girth to his
penis.27 Specifically, the hosts placed a microphone in the
bathroom that Mr. Coburn occupied while attaching the device
to, and testing the device on, his penis, thereby permitting
the hosts to provide listeners with a running commentary of
Mr. Coburn's efforts.28 The hosts also discussed at length
how Mr. Coburn was to use a tape measure to determine the
size of his penis29 and, at one point, the hosts invited
listeners to call in and guess what Mr. Coburn's penile
measurements would be after the pump's use.30 Although the
word ``penis'' was not aired, various common euphemisms -
some that could easily be understood by children - were used
instead.31
10. While we do not accept the argument that an
isolated or fleeting broadcast could not be indecent, we
need not reach that issue here because we find that the
hosts' description of the use of a penile-enlargement device
on a man's genitalia was prolonged.32 We similarly reject
Clear Channel's contention that the hosts' discussions of
male genitalia were vague and euphemistic, or, where more
specific, factually necessary in the context of a ``consumer
report.''33 In this case, the sexual import of the
references, in context, was inescapable, and would clearly
be understood by the listening audience and station callers
to have been to the test-subject's sexual organs. Moreover,
the use of euphemism or innuendo is not a defense to a
finding of indecency.34 We also reject Clear Channel's
contention that this material cannot be found indecent
because it was no more graphic or less graphic than material
in cases where the former Mass Media Bureau did not take
enforcement action.35 In support of this argument, Clear
Channel cites an unpublished internal staff memorandum and
unpublished staff decisions finding that certain material
was not actionably indecent.36 Even if those cases could be
deemed similar, to the extent that the staff may have erred
by determining that the material in those cases was not
indecent, these unpublished decisions are not binding on the
Commission.37 That is particularly the case here, where
published decisions, including those in the Indecency Policy
Statement, provide guidance indicating that material such as
that contained in this case is indecent.38
11. The program hosts' repeated vulgar and lewd
references to male genitalia, in the context of explicit
discussions of sexual arousal and masturbation while using
the penile-enlargement device,39 were pandering,
titillating, or used to shock the listening audience. In
contrast to Commission precedent where broadcasts were found
not indecent because sexual organs or activities were
discussed in a clinical, scientific or objective manner, the
context of the instant broadcasts was clearly titillating.
This is clear from the extensive sarcastic banter employed
by the program hosts when discussing the test-subject's
genitalia, which did not intend to make a serious or
clinical report concerning sexual health issues.40
Moreover, the fact that the test-subject's resulting penile
measurements, after use of the enlargement device, were made
the subject of a call-in contest, belies any claim that the
material was intended to be serious, clinical or
instructional in nature.41 These references, in context,
are similar to other material that has been found to be
patently offensive.42 In this case, we find that the
program hosts' extensive discussion of the penile-
enlargement device, and the size of the test-subject's
genitalia, when discussed within the context of a contest
centering on guessing the size of a man's penis, to be
patently offensive as measured by contemporary community
standards for the broadcast medium. Accordingly, we find
that AMFM apparently aired indecent material on September
17, 2002.
IV. PROPOSED FORFEITURE
12. Based on our review of the record in this case, we
conclude that AMFM is apparently liable for the willful
violation of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, by airing indecent programming on
WIHT(FM) on September 17, 2002. The Commission's Forfeiture
Policy Statement sets a base forfeiture amount of $7,00043
for transmission of indecent/obscene materials. 44 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.''45 In this
case, taking all of these factors into consideration, we
find that AMFM is apparently liable for the maximum
statutory forfeiture amount of $27,500.00 for the broadcast
of indecent material on September 17, 2002. In particular,
there is a recent history of indecent broadcasts on stations
controlled by Clear Channel Communications, Inc., AMFM's
corporate parent, which justifies imposition of the maximum
forfeiture amount.46 We reiterate our recent statement that
multiple serious violations of our indecency rule by
broadcasters may well lead to license revocation
proceedings.47
13. We also take this opportunity to note that we
could have found AMFM to have engaged in apparent repeated
violations. The statute prohibits the broadcast of indecent
``utter[ances].'' While the Commission has traditionally
viewed all of the utterances in one program to be a single
utterance and thus a single violation, such an approach is
not legally required. Here, for example, there were several
distinct passages and conversations, each of which could be
viewed as a separate indecent utterance, and thus a separate
violation. For purposes of this proceeding, we will use our
traditional per-program approach. We hereby make clear
that, in the future, we may treat situations like this as
multiple, repeated violations with the accompanying increase
in forfeitures.
V. ORDERING CLAUSES
14. 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,48 that AMFM Radio
Licenses, L.L.C. 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.
15. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty days of the
release of this Notice, AMFM Radio Licenses, L.L.C. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE
a written statement seeking reduction or cancellation of the
proposed forfeiture.
16. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment MUST INCLUDE the FCC Registration Number (FRN)
referenced above and also must note the NAL/Acct. No.
referenced above.
17. 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 DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
18. 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.
19. 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. 20554.49
20. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to AMFM Radio Licenses, L.L.C., 2625 S. Memorial Drive,
Suite A, Tulsa, Oklahoma 74129, with a copy to its counsel,
Dorann Bunkin, Esq., Wiley, Rein & Fielding, LLP, 1776 K
Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
Radio Station: WIHT(FM), Washington, D.C.
Dates/Time of Broadcasts: September 17, 2002, between
9:15 and 9:45 a.m.
Material Broadcast: The ``Hot Morning Mess'' Show
Mark -- Mark Kaye
Teapot --Tim Coburn
Kris -- Kris Gamble
Track #1
Mark: Hi, speaking of greatness, Teapot Tim is
about to do another consumer report. Today Teapot
what are you testing?
Teapot: Today I'm testing the Pee Pump.
(Laughter)
Mark: The pee-pee pump. We got the male-inflation
devise, with extended use or regular use. And it
actually enlargens (sic) your member.
Kris: Enlargens (sic).
Mark: Enlargens (sic), enlarges. Exactly enlarges
memberism (sic).
Kris: Enlarges your member unit.
Mark: Ah, so Teapot is gonna test this. First of
all, I'm gonna take a measurement of him before
pumping and then a measurement after.
Teapot: All righty.
Mark: Have you ever measured yourself? Do you know
what, what your average inches is?
Teapot: Yes, I do.
Kris: You do.
Mark: You do, what is it?
Teapot: It's about six, six and a half.
Kris: That's aroused, that's not flaccid?
Teapot: I've never measured the girth.
Mark: You've never measured the girth. We have a
tape measure, right Kris?
Kris: We certainly do, I made a tape measure.
Mark: Out of duct tape. Truly a tape measure,
perfect for Teapot. We've put a microphone in the
bathroom.
Teapot: Okay.
Mark: If you'll wander in there, let's get, go
ahead and get a preliminary measurement.
Teapot: Okay. You want me to measure it non-excited.
Mark: Right, we're gonna measure it non-excited.
Teapot: Okay.
Mark: Who'll do the regular, run-of-the-mill
Teapot, the spout, the unexcited spout?
Kris: Are you gonna be embarrassed to tell us?
Teapot: No.
Mark: This is so no good; no, this is good.
Kris: Why is this not good?
Mark: Teapot, can you hear us?
Teapot: Yeah, I can hear you.
Kris: I think it's important for all men all over
the place to know that the average is actually
pretty small.
Mark: I'm gonna tell you, if any men are like me
and I'm pretty sure a lot of women are too, that
didn't sound right, but you're very curious to see
what this thing does.
Kris: I'm extremely curious.
Mark: Ever since I saw the first Austin Powers
movie, I've been like, ah, boy I wonder what that
would be like.
Kris: That's not my bag, baby.
Mark: Okay, Teapot, drop you drawers for us.
Teapot: Okay, here we go.
Mark: It does look just like the one in Austin
Powers. Is Leslie there taking pictures?
Teapot: Hey there little guy.
(Laughter from male and female)
Kris: Oh, my God.
Mark: Laughter.
Teapot: [Inaudible.] So you are the one.
Kris: Don't talk to it, it might jump up and bite
you.
Mark: Okay, Teapot, let's get a length measurement.
Teapot: Oh, my God, he can't come in, I'm naked.
Kris: I have to take pictures.
Teapot: Okay, we have four inches.
Mark: Okay, you're not pulling on it or tugging on
it are you or anything, you're just letting it
hang?
Teapot: No.
Mark: Leslie, is he just letting it hang?
Leslie: Yeah.
Mark: Is he measuring from like, his belly button
or something?
Leslie: I don't know. Da, uh, da uh, laughter. That
sounded kinda low. Are you sure it's four?
Teapot: You wanted me to measure the girth, right?
Mark: No, we want you to measure the length, from
tip to tip.
Teapot: Oh.
Mark: That's okay.
Kris: I knew he had something wrong.
Teapot: Three inches.
Mark: Okay, that's more like it.
Kris: That's more like it.
Mark: That's the Teapot we know and love.
[Female laughter]
Mark: Alright, now Teapot, take the tape measure.
[Female laughter]
Teapot: Uh, huh.
Mark: Now wrap it around and measure the width.
[Female laughter.]
Teapot: That's four inches.
Kris: The girth was four; that's the circumference-
-four.
Mark: Really, he already took the circumference?
Wow.
Kris: He's got a fat little thing.
Mark: His thing is three, the width of this is
actually [inaudible]. He got Fat Joe and Asshanti.
Okay, alright. What we're gonna do now, Teapot?
Kris: Don't crack the door!
Mark: Go ahead, you I have the pump right here, so
we're gonna have to give that to you.
Kris: Alright.
Mark: Let's take a quick break. Uh, when we get
back, Teapot, Tim will pump him up and we'll see
how much farther we can go.
Mark: It's currently three inches, four inches
around.
Kris: Right
Mark: [Laughter.]
Kris: It's almost as fat as it is long.
Mark: [Laughter.]
Kris: Is it square?
Mark: You know, it's like when you buy pants and
the waist is bigger than the length, it's too
embarrassing!
Kris: Ah, that's embarrassing.
Mark: Anyway, like 34, 32.
Kris: Ouch. Oh, God!
Mark: We'll be right back, this is the ``Hot
Morning Mess'' with Mark & Kris.
[Laughter.]
Track #2
Mark: Alright, ladies and gentlemen, we have Teapot
Tim in the bathroom. Tim are you there?
Teapot: Yes, I'm here.
Mark: Okay, you just took measurements of this
little spout.
Kris: Right, Teapot's spout.
Mark: And it measures three inches long, right?
Teapot: Right.
Mark: And four inches around?
Teapot: Correct.
Mark: Okay, and that's totally unexcited,
uninterested. It's like it's been listening to
the show all morning.
Kris: Just like our listeners.
Mark: Ah, alright, good. Now what we're gonna do
is, we have this pump that we got from our friend
Stacy, at Stacy's Treasures.
Kris: Right.
Mark: And we're going to pump Teapot up. We're
gonna pump (hands clapped), him up.
Kris: Alright.
Mark: Or he's going to pump himself up. Now this
thing supposedly when you stick it on your thingee
and start pumping, Teapot pump it in the
microphone so we can hear it.
[Sound of pump operating.]
Mark: Yeah.
Kris: Sounds like a little blood pressure thing.
Mark: A stigmomidometer (sic).
Kris: That's right.
Mark: It like, ah, it's got one of those little
things on it and a large red tube that, ah, slides
over.
Kris: Uh huh.
Mark: Your spout.
Kris: Uh huh.
Mark: Ah, so Teapot's gonna start pumping himself
to (a) get him bigger, longer; and (b) with
extended use, everyday use, increase the size.
Kris: Right, it's like exercise. You're supposed to
do exercise everyday to make things bigger and
harder.
Mark: That's exactly right.
Kris: Like your muscles.
Mark: Exactly right.
Kris: Well this is exercise for his little muscle.
Mark: For the ``love muscle.''
Kris: That's right, for the ``love spout.''
Mark: Alright now, Teapot?
Teapot: Yeah.
Mark: Have you ever measured yourself before?
Teapot: Yes.
Mark: You have? Okay, so you have a pretty good .
. . .
Teapot: Yes.
Mark: idea in your head of what's going to happen.
. . .[laughter] in your head. Tell you what we're
going to do, we're going to turn this into a
little contest, `cause this could be kinda fun.
Teapot's gonna pump himself up and we'll see how
long and how big around it gets.
Kris: Okay.
Mark: How big will he be. It's ``Hot Morning
Mess'' with Mark and Kris.
[Break in programming.]
Track #3
Mark: Right now ladies and gentlemen, it's back to
the bathroom where Teapot Tim is, ah, hanging, ah,
about. What's going on Teapot?
Teapot: Yo, yo, yo.
Mark: How's your little spout doing?
Teapot: It's doing alright.
Kris: Are you having stage fright?
Mark: Little bit. Teapot Tim has ah, just measured
his manhood, his little spout and what we're gonna
do is test out today for our consumer report the
``Pump Him Up,'' ah, ``Pee-Pee Pump.'' See how
big it actually gets. We have some people on the
line that want to take a guess. The starting size
is three inches long, four inches around.
Kris: Right.
Mark: We'll take some guesses and whoever gets
closest to what we can get it, without going over
gets what, Kris Gamble.
Kris: We've got a four-pack of tickets to see ``The
Top 10 American Idol'' in concert here on November
3rd.
Mark: Fantastic, let's start with Ben. Hey, Ben,
where you calling from?
Ben I'm calling from the Lord & Taylor parking
lot in Fair Oaks.
[Laughter.]
Mark: Whacha doing in the parking lot, I wonder?
Ben Uh, I'm getting ready to go into work.
Mark: Uh, okay, good. Well hand tight just a
couple of more minutes. Tell us quickly how long
do you think Teapot's gonna get? He's currently
three long, four around.
Ben: Well, um, my guess is he's gonna get up to
eight inches and five around.
Mark: Wow, whoa, have you used one of these
yourself before?
Ben: Well, kinda, yes.
Kris: Oh, so he has the inside track my friends.
Ben's gonna . . . .
Kris: Alright, right, wow¾five.
Mark: Fantastic. Hang on, Ben. Joyce from D.C.
Joyce: Yes, hi.
Mark: Hey, Joyce, what's your guess, how long, how
big around?
Joyce: Four long, five wide. I don't think it's
going to work.
Mark: Oh you don't think it's going to work, just
an inch on either side?
Joyce: That's it.
Kris: Wow.
Mark: Hang on; we'll see. Hey, ah, Debbie from
Bowie.
Debbie: Hey.
Mark: Hey, Debbie, what do you think, length and
width?
Debbie: Barring any stage fright, seven; five and
one-half.
[Laughter.]
Mark: Seven; five and one-half.
[Laughter.]
Kris: Barring stage fright, an excellent, ah, you
know, thing there.
Mark: Yeah, no kidding. Just a couple more,
alright. Michelle from Arlington.
Michelle: Yes, five long and six wide.
Mark: Five long and six wide.
Kris: Oh, ugh, uh, he'd be wider then he is long.
That's weird!
Mark: Alright, we'll see what happens.
Male Voice: That's a soup can.
Mark: Soup-can Tim.
Kris: Push me--you have a soup can in your pants!
Male Voice: He's just happy to see me.
Mark: And finally this is Dana. How you doing,
Dana?
Dana: Fine.
Mark: What are you thinking?
Dana: Seven and one-half long and five wide.
Mark: Seven and one-half long and five wide.
Dana: Right.
Mark: Alright, hang on, dear.
Dana: Oh, alright.
Mark: So here's what we got. Ben, who's eight and
five; Joyce who's four and five; Debbie who's
seven and five and one-half; Michelle who's five
and six.
[Female laughter.]
Mark: And Dana, who's saying seven and one-half and
five. Alright, Teapot, are you there?
Teapot: Yup.
Mark: You ready to go?
Teapot: Yes, let's do it.
Mark: Slide the sucker on. Is it in place?
Teapot: No, I gotta take my pants down.
Mark: Oh yeah, that's a good idea.
Kris: Well, he didn't want to stand around in there
with Leslie with pants around his ankles.
Mark: Okay, are you in place?
Teapot: Yup.
Mark: Alright then, slide the unit on the unit.
Okay, you're ready?
Teapot: Yup.
Mark: On you mark, get set, ah, pump `em up.
Kris: I hear pumping.
Mark: Teapot? Teapot?
Teapot: You guys there?
Kris: Oh, they made a page out of your office and
our radio station goes off in there.
Mark: Okay, let's try again.
Kris: Start pumping.
Mark: Hang on, don't yet.
Teapot: Okay.
Male Voice: That was anti-climactic.
Mark: Okay, on your mark, get set, start pumping.
[Pumping sound in background with theme to the
movie ``Rocky'' playing.]
Kris: There we go, a little false start.
Mark: Do you feel anything?
Teapot: Not really.
Kris: Give it a minute.
Teapot: I think I need to push on it harder to get
the, uh, seal.
Mark: Ah, yeah.
Kris: Yeah you need it air-tight against your body.
Mark: Yeah, yeah.
Teapot: Okay, oh, now I'm starting to feel it.
[Background clapping and laughter heard.]
Mark: Okay, Teapot, think wonderful thoughts, too.
Close your eyes and dream of whatever you dream
of.
Teapot: (Moaning.) Ah, yeah.
Kris: Don't be a pig.
Mark: Yuck.
Kris: Bad enough you're doing this, you don't need
to embellish.
Mark: Keep going until you think you can't go any
further.
Teapot: Okay.
Male Voice: Ouch.
Mark: We don't want any explosions in there,
please.
Kris: Yeah, I know--no ruptures.
Male Voice: Don't rupture any blood vessels or anything.
Mark: How's it going?
Teapot: [Groan.] It's not getting any bigger.
Mark: Are you pumping, do you have a nice air-tight
seal?
Teapot: Yes, I do. And it's pulling on it, but it's
not getting any bigger.
Kris: Like a bad date.
Mark: Can you see it or you just know?
Teapot: I can just feel, you know, you know.
Kris: No, that's the problem, we don't.
Mark: Alright, tell you what, pump like for maybe
30 more seconds.
Teapot: Yeah, okay.
Mark: Really give it your all.
Teapot: [Grunting sounds.]
Kris: Are you thinking nice thoughts?
Teapot: I am trying to.
Mark: But don't let use distract you in any way.
Teapot: Talk to me, Kris.
Kris: Ugh.
Mark: Yeah, talk dirty to him, Kris.
Kris: No, you do.
Mark: No, come on. Tell him about your breasts.
Kris: No, you do it.
Teapot: My hand's never been this tired.
Mark: [Laughter.] Yeah, right.
Kris: `Cause it happens so quickly.
[Buzzer sound.]
Mark: I don't believe that for a second. Okay,
Teapot, ten seconds.
Teapot: Okay.
Mark: Four, three, two one. Okay, ah, please
remove the ``Pump Him Up'' unit.
Teapot: Okay.
Mark: And take a measurement. Ah, first the
length.
Teapot: The length is three inches. [Sound of bell
ringing.]
Mark: And what is the girth?
Teapot: The girth is four inches. [Sound of bell
ringing.]
Mark: Excellent.
Male Voice: So we got absolutely no growth.
Mark: In other words, it doesn't work. Hey,
Joyce. . . .
Kris: It shrank.
Mark: Hey, Joyce.
Joyce: Yeah?
Mark: You said it wasn't gonna work. So, I'll give
him an inch.
Kris: I'm curious to know if he has to be excited
first.
Mark: I don't know, man.
Kris: I think that may be the way it works.
Mark: Wow, maybe.
Mark ``Hot Morning Mess'' with Mark and Kris.
STATEMENT OF COMMISSIONER MICHAEL J. COPPS,
DISSENTING
Re: AMFM Radio Licenses, L.L.C., Licensee Station WIHT(FM),
Washington, D.C.
In this case, the Commission adopted a Notice of
Apparent Liability against Clear Channel for violating the
statutory prohibition against broadcasting indecent
material. The Commission subsequently learned that the
statutory deadline had passed last fall when the station's
license was renewed. This case highlights the need to
address complaints filed with the Commission expeditiously.
In addition, I have been calling for the Commission to
establish an effective license renewal process under which
the Commission would once again actually consider the manner
in which a station has served the public interest. One
aspect of that consideration should include complaints filed
by the public. It is unfortunate that in this instance a
license was renewed while a pending complaint remained
unaddressed. Going forward, the Commission should not only
ensure that all complaints have been addressed before a
license is renewed, but we should also conduct a more
thorough examination of how stations are meeting their
public interest responsibilities over the term of their
licenses.
STATEMENT OF KEVIN J. MARTIN
Re: AMFM Radio Licenses, L.L.C., Licensee of Station
WIHT(FM), Washington, DC, Notice of Apparent Liability
For Forfeiture (adopted February 20, 2004)
After we adopted this item (which we had received from
the Bureau less than a month before), we were informed that
the statute of limitations had run last year. As a result,
we cannot enforce the fine this item imposes. The
Commission must begin acting in a timely fashion so that we
can, literally, enforce our rules.
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: AMFM Radio Licenses, L.L.C., Licensee of
Station WIHT(FM), Washington, DC; Notice of
Apparent Liability for Forfeiture
It is unfortunate that after the Commissioners promptly
voted this item, we were made aware that the statute of
limitations had run. We should not let unnecessary delay
deprive us of the ability to meet our obligation to enforce
statutory and regulatory provisions restricting broadcast
indecency.
_________________________
1 See Letter from Douglas Miller to Investigations &
Hearings Division, Enforcement Bureau, dated September 17,
2002 (``Complaint Letter'').
2 See id.
3 See Letter of the Chief, Investigations & Hearings
Division, Enforcement Bureau, to AMFM Radio Licenses, LLC,
dated May 27, 2003, revised and resent by Letter of the
Chief, Investigations & Hearings Division, Enforcement
Bureau, to AMFM Radio Licenses, LLC, dated August 11, 2003
(collectively the ``LOI'').
4 See Letter of Clear Channel Communications, Inc., to
Marlene H. Dortch, Secretary, Federal Communications
Commission, dated August 14, 2003 (``Response''). (In its
Response, Clear Channel states that it is the ultimate
parent of AMFM Radio Licenses, LLC.) The Bureau's staff
prepared a transcript from the CD recording submitted by
Clear Channel, which is set forth at Attachment A.
(``Program Transcript.'')
5 Response at 2-3. Clear Channel does not deny airing the
contest in question during ``Hot Morning Mess'' program,
which is broadcast from 5:30 to 10:00 a.m., Monday through
Friday. Clear Channel represents that it aired the show on
Station WIHT(FM) only, and that the show's producer, Ron
Ross, recalls that the contest was scheduled for broadcast
at 9:15 a.m., 9:25 a.m., and 9:30 a.m. on September 17,
2002. Clear Channel represents that the show in question
``is not syndicated, is not aired on any other station, and
that the particular segment at issue was not provided to
any other radio station for broadcasting.'' Id. at 3.
6 Clear Channel contends that the station hosts were
testing the efficacy of a penile-enlargement device called
``Pump Him Up'' in the context of a ``consumer report.''
Response at 4.
7 Response at 3-5.
8 U.S. CONST., amend. I; see Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').
9 See 47 U.S.C. § 326.
10 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
id. at 1340, n.14 (``the potential chilling effect of the
FCC's generic definition of indecency will be tempered by
the Commission's restrained enforcement policy.'')
11 18 U.S.C. § 1464.
12 See 47 C.F.R § 73.3999.
13 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'').
14 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., (MO&O),
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.
15 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
16 See, e.g., SBC Communications, Inc., (NAL) (FO), 17 FCC
Rcd 7589, 7591, ¶ 4 (2002)(forfeiture paid).
17 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)).
18 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).
19 AMFM acknowledges that the ``product tested on the HMM
show involved a sexual organ[.]'' Response at 4.
20 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, 16 FCC Rcd at 8002, ¶ 8 and n. 15.
21 Id. at ¶ 9 (emphasis in original). In this regard, in
order for us to be in a position to judge the context of
particular material, once a complainant makes a prima facie
case, it is appropriate for the staff to seek from the
licensee a tape or transcript not only of the relevant
material, but also of a reasonable amount of preceding and
subsequent material.
22 Id. at 8002-15, ¶¶ 8-23.
23 Id. at 8003, ¶ 10.
24 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) (extremely graphic or explicit nature of
references to sex with children outweighed the fleeting
nature of the references).
25 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'').
26 See id. at 8010, ¶ 20 (citing Rusk Corporation
(KLOL(FM)), 5 FCC Rcd 6332 (MMB 1990)(forfeiture paid)
(manner of presentation was critical to indecency finding);
Jacor Broadcasting Corporation (WEBN(FM)), 13 FCC Rcd 4152
(MMB 1997), aff'd 13 FCC Rcd 5825 (MMB 1997) (forfeiture
paid) (manner of presentation was critical to indecency
finding).
27 Program transcript at 10-12, infra.
28 See, e.g., program transcript at 21-22, infra.
29 See, e.g., program transcript at 10-11, infra, wherein
the hosts discussed the test-subject's genitalia in graphic
and specific terms.
30 Id. at 16, infra.
31 Terms such as ``pee-pee,'' ``member,'' ``little spout,''
``manhood,'' ``unit,'' and ``love muscle'' were used.
Response at n.7; program transcript at 10, 11, 14, 15, 16.
32 Response at 4.
33 Id.
34 See San Francisco Century Broadcasting, LP (KMEL(FM)), 7
FCC Rcd 4857 (1992), aff'd, 8 FCC Rcd 498 (1993)
(forfeiture paid) (where language is clearly capable of a
specific sexual meaning, and the context renders the sexual
import inescapable, the use of innuendo is not a bar to a
finding of indecency).
35 See Memo from Thom Winkler to WIOD(AM) Complaint File
(April 21, 1997) (FCC Ref. No. 97010196); Letter from
Norman Goldstein, Chief, Complaints and Political
Programming Branch, Enforcement Division, Mass Media
Bureau, to Mrs. Barbara Onisko (May 15, 1997) (FCC Ref. No.
94069521); Letter from Norman Goldstein, Chief, Complaints
and Political Programming Branch, Enforcement Division,
Mass Media Bureau, to R.D. Merkel (January 23, 1997) (FCC
Ref. No. 94110410).
36 Id.
37 See, e.g., Amor Family Broadcasting Group v. FCC, 918 F.
2d 960, 962 (D.C. Cir. 1990), citing Homemakers North Shore,
Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987). See also
Lorenzo Jelks v. FCC, 146 F.3d 878, 881 (D.C. Cir. 1998).
38 See n. 43, infra.
39 See, e.g., n. 28, supra.
40 Compare King Broadcasting Co. (KING-TV), 5 FCC Rcd 2971
(1990) (where the broadcast of a high-school sex education
class was found to be not indecent because the material was
clinical and instructional in nature) with Citicasters Co.,
15 FCC Rcd 19095 (EB 2000) (forfeiture paid) (where
discussion of sexual techniques led by sex therapist, which
included comments such as ``oh yeah, baby,'' was found to
be pandering and titillating and thus patently offensive).
41 See program transcript at 16-19, infra.
42 See, e.g., Entercom Seattle License, LLC (KNDD(FM)),
Notice of Apparent Liability, 17 FCC Rcd 1672 (EB 2002),
Forfeiture Order, 17 FCC Rcd 18347 (EB 2002)(application
for review pending) (discussion as to the capacity of the
male genitalia to pull objects, as well as references to
erection, relative penis size and to the anatomical
features of the male genitalia was found to be patently
offensive); Independent Group Limited Partnership
(WWWE(AM)), 6 FCC Rcd, 3711, 3712 (MMB 1990)(humorous
discussion of a man with a penis on his head, which is a
``birth defect''); Goodrich Broadcasting, Inc. (WVIC-FM), 6
FCC Rcd 2178, aff'd 6 FCC Rcd 7484 (MMB 1991)(vulgar,
repeated and gratuitous references to sexual organs and
activities in the context of humorous discussions
concerning an allegedly true incident in which a man's
testicle was trapped in the drain of a hot tub); KFI,
Inc.(KFI(AM)), 6 FCC Rcd 3699, 3700 (MMB 1989)(discussion
of the size of the genitals of male celebrities and
political leaders, including commentary on the size of
erect genitals relative to those that are not erect).
43 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).
44 Id.
45 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
46 AMFM Radio Licenses, LLC (WWDC-FM), 18 FCC Rcd 19917 (EB
2003) (forfeiture paid); Citicasters Co. (KEGL(FM)), 16 FCC
Rcd 7546 (EB 2001) (forfeiture paid); Citicasters Co.
(KSJO(FM)), 15 FCC Rcd 19095 (EB 2000)(forfeiture paid);
Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19091 (EB
2000)(forfeiture paid).
47 See Infinity Broadcasting Operations, Inc.(WKRK-FM), 18
FCC Rcd 6915, 6919, ¶ 13 (2003) (NAL); 18 FCC Rcd 26360
(2003) (FO)(pet. for recon. pending) before we decided the
WKRK-FM case.
48 47 C.F.R. § 1.80.
49 See 47 C.F.R. § 1.1914.