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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


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.


     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 


     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


     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 

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 

     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.


     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 

     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.


     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 

     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. 


                         Marlene H. Dortch
                         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.


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 

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 

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 

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-

Mark:          Really,  he already  took the  circumference?  

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 

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 

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.


   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 

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 

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 

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.


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 

Debbie:        Hey.

Mark:          Hey, Debbie,  what do  you think,  length and 

Debbie:        Barring  any stage  fright,  seven; five  and 


Mark:          Seven; five and one-half. 


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:          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 

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 

Teapot:        Okay.

Male Voice:    Ouch.

Mark:          We  don't  want   any  explosions  in  there, 

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 

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 

Teapot:        The length  is three inches.  [Sound  of bell 

Mark:          And what is the girth?

Teapot:        The  girth is  four inches.   [Sound of  bell 

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 

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.


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 


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 

     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 


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 

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 

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.