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

In the Matter of                  )
                                 )   NAL/Acct. No. 200232080005
Licensee of Station KNDD(FM),     )   FRN 0003245719
Seattle, Washington               )   Facility ID # 34530


Adopted:  April 8, 2004                 Released:   May  14, 

By the Commission:  Commissioner Martin issuing a statement; 
Commissioner          Copps          dissenting          and                                                   
issuing a statement.  


     1.   In this Memorandum Opinion and Order, we deny the 
Application for Review, filed on October 28, 2002, by 
Entercom Seattle License, LLC (``Entercom''), licensee of 
Station KNDD(FM), Seattle, Washington.   Entercom seeks 
review, pursuant to 47 C.F.R. § 1.115, of a Forfeiture Order 
issued by the Chief, Enforcement Bureau (``Bureau'') that 
imposed a monetary forfeiture penalty in the amount of 
Twelve Thousand Dollars ($12,000.00) against Entercom for 
willful and repeated violations of 18 U.S.C. § 1464 and 47 
C.F.R. § 73.3999, which prohibit the broadcast of indecent 
material between 6 a.m. and 10 p.m.  


     2.   The Commission received a complaint that KNDD(FM) 
broadcast indecent material on May 30 and 31, and June 1, 
2001.  The complainant alleged that, during the May 30 and 
June 1 broadcasts, the station broadcast material concerning 
whether and how a penis could be used to lift or pull 
objects.  After reviewing the complaint, we issued a letter 
of inquiry to Entercom.1  Entercom submitted a response,2 
which included a transcript of the material at issue in the 
complaint, which Entercom had prepared.3  As set forth in 
the transcript, during the May 30, 2001, broadcast, the 
station's morning show personalities discussed whether a 
penis could be used to lift or pull objects.4  As a result 
of the on-air discussion, the show's hosts decided to give 
concert tickets to listeners who agreed to appear in the 
studio to pull objects with their penises.5 During the June 
1, 2001, broadcast, the show's hosts discussed the 
preparations for the contest, during which an individual in 
the studio attempted to put a harness on his penis.6 

     3.   After reviewing Entercom's response to the letter 
of inquiry, the Bureau issued a Notice of Apparent Liability 
(``NAL''), finding that the complained-of material that was 
broadcast on May 30  and on June 1, 2001, was patently 
offensive and therefore apparently violated the Commission's 
indecency rule.7  The NAL proposed a monetary forfeiture 
penalty of Fourteen Thousand Dollars ($14,000.00) based upon 
KNDD(FM)'s broadcast of apparently indecent material on two 
separate occasions.  

     4.   On February 27, 2002, Entercom filed a response to 
the Bureau's NAL8 in accordance with Section 1.80(f)(3) of 
the Commission's rules.9  Entercom contended that there is a 
clear absence of any sexual or excretory context or import 
in the complained-of material because there is no discussion 
about the sexual or excretory functions of the male 
genitalia.10  Thus, Entercom argued that the material was 
not patently offensive as measured by contemporary community 
standards for the broadcast medium, and was not actionably 
indecent.11   Entercom also cited the United States Supreme 
Court's decision in Reno v. ACLU, 521 U.S. 844 (1997), which 
invalidated an indecency standard for the Internet, in 
support of its argument that the Commission's indecency 
standard is vague, overbroad, unenforceable, and, therefore, 
unconstitutional.12  Moreover, Entercom argued that if the 
proposed forfeiture was not canceled, it was entitled to a 
downward adjustment based on its history of overall 
compliance with the Commission's rules.13  

     5.   The Bureau considered the Entercom NAL response, 
and issued the Forfeiture Order.14  The Bureau rejected 
Entercom's argument that the NAL's finding that the 
complained-of material apparently met the Commission's 
indecency definition was a ``radical and unexplained 
departure from past FCC case precedent, where an 
unmistakable sexual or excretory import has been an 
indispensable element of an indecency finding.''15  In doing 
so, the Bureau specifically ruled that the indecency 
definition encompasses references to sexual organs, separate 
and apart from sexual activities, where those references are 
patently offensive.  Although the Bureau disagreed with 
Entercom's assertion that the broadcast of indecent material 
on two separate occasions constituted a minor violation, it 
nevertheless found that a downward adjustment of the 
forfeiture amount was appropriate in light of Entercom's 
overall history of compliance and imposed a Twelve Thousand 
Dollar ($12,000.00) forfeiture.  

     6.   In its Application for Review, Entercom continues 
to assert its argument that the Bureau's decision amounts to 
a new indecency definition, under which non-sexual 
references to male genitalia during a broadcast are per se 
indecent, and that such use, by itself, is sufficiently 
explicit and graphic to justify an indecency finding, even 
in the absence of any sexual or excretory import.16   
Entercom also contends that the Bureau's finding that the 
complained-of material was patently offensive is conclusory 
and unsupported by the precedent cited.17  In addition, 
Entercom argues that the Commission's indecency definition 
is unconstitutional.      


     7.   We have reviewed Entercom's Application for Review 
and the record in this matter, and find no reason to reverse 
the Bureau's Forfeiture Order.  We agree with the Bureau 
that the material cited in the Forfeiture Order met the 
indecency standard.  Consequently, we deny the Application 
for Review and affirm the forfeiture assessed by the Bureau.  

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

           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 

This definition has been specifically upheld by the federal 
courts.20  The Commission's authority to restrict the 
broadcast of indecent material extends to times when there 
is a reasonable risk that children may be in the audience.21  
Under current law, indecent material may not be broadcast 
between 6 a.m. and 10 p.m.22 

     9.   In the Entercom NAL Response, Entercom 
acknowledged that the material broadcast on May 30 and June 
1, 2001, contained references to sexual organs and did not 
dispute that the material warranted scrutiny.23 However, 
Entercom now challenges the Bureau's threshold determination 
that it aired material describing or depicting sexual organs 
and activities. Specifically, it contends that non-sexual 
``references'' to the male genitalia do not meet the 
threshold subject matter definition under the indecency 
standard. Entercom therefore contends that, because the 
complained-of material does not depict or describe sexual or 
excretory organs or activities, the Bureau's conclusion that 
this material warranted scrutiny constituted an 
impermissible departure from precedent that requires 
indecent material to have an unmistakable sexual or 
excretory import.24

     10.   We disagree, and find no error in the Bureau's 
determination that the material at issue warranted scrutiny.  
Our indecency definition requires an initial determination 
as to whether the material at issue, in context, depicts or 
describes sexual organs or activities.  Contrary to 
Entercom's assertion that the material is ``non-sexual,'' 
there is discussion of erection and arousal, which 
implicates the sexual functions of the male genitalia.25  In 
any event, material that, in context, depicts or describes 
sexual organs is subject to the indecency definition, 
regardless of whether sexual activity is also depicted or 
described. In this regard, the Forfeiture Order states that 
the complained-of material ``referred to sexual organs,''26 
and also makes clear that ``... the Commission's indecency 
definition is applicable to material that describes or 
depicts sexual organs, which was the subject of these 
broadcasts.''27  The Bureau cited, and the record includes, 
descriptions of the male genitalia sufficient to warrant 
further scrutiny to determine whether or not this material 
was patently offensive as measured by contemporary community 
standards for the broadcast medium.28    

     11.  In the assessment of whether broadcast material is 
patently offensive, ``the full context in which the material 
appeared is critically important.''29 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.30  In examining these three factors, it 
is necessary to 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.''31  In particular 
cases, one or two of the factors may outweigh the others, 
either rendering the broadcast material patently offensive 
and consequently indecent,32 or, alternatively, removing the 
broadcast material from the realm of indecency.33  In this 
case, we agree with the Bureau's examination of all three 
factors and its determination that each weighs in favor of a 
finding that the broadcast material was patently offensive.  
Consequently, we reject Entercom's assertion that the 
Forfeiture Order establishes that mere ``references'' to 
male genitalia are per se indecent.34 

     12.  First, we find no merit to Entercom's contention 
that the Bureau failed to provide a meaningful analysis of 
its finding that the material at issue is sufficiently 
graphic and explicit. The Bureau cited the broadcasts' 
discussion as to the capacity of the male genitalia to pull 
objects, as well as references to erection, to relative 
penis size and to the anatomical features of the male 
genitalia.35 Entercom also argues that the Bureau failed to 
address an unpublished staff letter, which ruled that 
certain material broadcast over Station WMCA(AM), New York, 
New York, was not indecent.36 We note that the WMCA decision 
was an unappealed staff decision.  The Commission is not 
bound by, nor does it necessarily agree with, Bureau 

     13.   The Bureau determined, under the second factor, 
that the discussion of the male genitalia was not fleeting 
or isolated. We emphasize, however, that ``[t]he mere fact 
that specific words or phrases are not sustained or repeated 
does not mandate a finding that material that is otherwise 
patently offensive to the broadcast medium is not 
indecent.''38  Although Entercom argues that the complained-
of material includes ``numerous traffic reports, celebrity 
new items, concert updates and other news related 
breaks[...that] ultimately diluted the segments' overall 
focus on the pulling capacity of the penis,''39  the fact 
that the broadcasts repeatedly returned to the topic 
demonstrates a persistent focus on the male sexual organ and 
removes any doubt that this material was patently offensive.   

     14.  Under the third factor, Entercom also argues that, 
because the material at issue contains ``no discussion at 
all to the sexual or excretory functions of the penis or 
testicles,'' it was not used to pander, titillate or 
shock.40   Entercom claims that precedent cited by the 
Bureau in the Forfeiture Order can be distinguished because 
the material found to be indecent included discussion of 
sexual activities, whereas the material broadcast over 
KNDD(FM) does not.41  However, as noted above, the material 
that was broadcast over KNDD(FM) included discussion of the 
sexual function of the male genitalia.42  Moreover, material 
that describes or depicts sexual organs, in context, may be 
patently offensive within the meaning of the Commission's 
indecency definition regardless of whether that material 
also includes description or depiction of sexual activity.43   

     15.  In addition, Entercom argues that the Bureau 
impermissibly drew a distinction between the material 
broadcast over KNDD(FM) and material which is of greater 
``serious'' merit.44 However, the Bureau's Forfeiture Order 
pointed to other material that was clinical in nature or 
part of a legitimate news story in order to distinguish the 
material broadcast over KNDD(FM) from other material that, 
in context, was not patently offensive because the manner 
and purpose of the presentation was not pandering or used to 
titillate or shock.45 We agree with the Bureau's conclusion 
that the complained-of material, in context, is similar to 
other material that has been found to be patently offensive 
and thus find no error in the Bureau's application of the 
factors used to determine patent offensiveness.46

     16.  Entercom also argues that the Commission's 
indecency standard is facially unconstitutional, citing Reno 
v. ACLU 47 and Ashcroft v. Free Speech Coalition.48  The 
constitutional validity of the Commission's indecency 
standard has been repeatedly affirmed by courts.49  As we 
have previously indicated, neither Reno nor Ashcroft alters 
this conclusion.50 


     17.  ACCORDINGLY, IT IS ORDERED, pursuant to section 
1.115 (g) of the Commission's rules,51 that the Application 
for Review filed on October 28, 2002 by Entercom Seattle 
License, LLC is hereby DENIED.  

     18.  Payment of the forfeiture may be made by mailing a 
check or similar instrument, payable to the order of the 
``Federal Communications Commission'' to the Federal 
Communications Commission, to the Forfeiture Collection 
Section, Finance Branch, P.O. Box 73482, Chicago, Illinois 
60673-7482.  The payment MUST INCLUDE the FCC Registration 
Number (FRN)(0003245719) referenced above and also must note 
the NAL/Acct. No. (200232080005) referenced above.  If the 
forfeiture is not paid within 30 days of the release of this 
Memorandum Opinion and Order, the case may be referred to 
the Department of Justice for collection 

     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. 20554.52

     20.  IT IS FURTHER ORDERED that a copy of this Notice 
shall be sent, by Certified Mail/Return Receipt Requested, 
to John C. Donlevie, Executive Vice-President, Entercom 
Seattle License, LLC, 401 City Avenue, Suite 409, Bala 
Cynwyd, Pennsylvania, 19004 and to Entercom's counsel, Brian 
M. Madden, Esq., Leventhal, Senter & Lerman P.L.L.C., 2000 K 
Street, N.W., Suite 600, Washington, D.C.  20006-1809. 


                         Marlene H. Dortch



Radio Station:           KNDD(FM), Seattle Washington
Dates/Time of Broadcasts:     May 30, 2001 and June 1, 2001, 
                    between 6 a.m. and 10 p.m.
Material Broadcast:           The Andy Savage Show

May 30, 2001 

AS:  Andy Savage
J:   Jody
B:   Bob, the Producer
MV:  Caller

AS:  That was  the Red  Hot Chili  Peppers, 107.7,  The End. 
     It's 7:16, I'm  Andy Savage, along with  Jody, Queen of 
     Normandy  and Bob  the Producer,  who's filling  in for 
     Steve the Producer. 

B:   Woop, Woop. 

AS:  50 going  to 70 for  the high  today. It's going  to be 

J:   Was that  your wacky producer noise  right there? Woop, 
woop, woop, woop, woop! 

AS:  Bob, I don't  think you should be  saying anything 'cuz 
you lost on "Beat the Producer. 

B:   Alright, I'm Sorry, I'll be quiet. 

AS:  Meanwhile  in  India  when  they  protest  against  the 
     federal government, you know  they don't blow things up 
     or anything, they pull Jeeps  with their penises. A uh, 
     Naga Sathu  naked holy man was  demonstrating again the 
     government  harassment of  naked holy  men and  to make 
     sure  that they  heard him  he tied  a rope  around his 
     penis and pulled a Jeep. 

J:   He  should have  just  used a  megaphone like  everyone 
     else. What the Indian government has a big problem with 
     naked holy men? Are they're running around crazy like? 

AS:  I guess  so, I guess  it's against  the law. But  he, I 
     guess, pulled  a Jeep to  prove his point. I'm  sure it 
     was in neutral. I hope it was in neutral. 

J:   I can imagine it was in neutral. I'm sure it was one of 
     those like Suzuki Samurais too, not a big Hummer. 

AS:  Holy crap  Nadi, he just  pulled a  Jeep and it  was in 
park - he did it with his penis! 

J:   You always  hear about  guys lifting stuff  and pulling 
     stuff with  things attached  to their penises.  I think 
     that is incredible. Could  you pull something with your 

AS:  Me?

J:   Like if  I was  to tie,  let's say um,  what if  it was 
something small like. 

AS:  I'd pull my penis right off! 

J:   If it was something small like 

AS:  Like an acorn, yeah I can drag that around. 

J:   Like  my orange.  Let's say  I  tied a  rope around  my 
     orange and then  tied the other end to  your penis, and 
     you could pull that? 

AS:  Of course I could drag that. 

J:   How  about a  13 inch  TV? Like  at what  point do  you 

AS:  If I think, I think if I was fully erect I could pull a 
13 inch TV.

J:   So you would have to be erect? 

AS:  Yes.

J:   Bob? 

AS:  Not for an orange though. 

J:   Bob, could you pull a 13 inch TV? 

B:   No. I'm  not going  heavier than  ten pounds.  I'm not.  
     That's  about my  cutoff, about  ten pounds-  erect, no 
     erect. Ten pounds.  

J:   Well what do you think the problem would be, that you'd 
     pull your  back out or  you'd actually pull  your penis 

B:   Perhaps. 

AS:  No, I don't  think you'd pull your penis off  with a TV 
that small. 

J:   Cause if these guys can drag stuff, why can't you? 
AS:  We're  talking about  a Jeep.  Why, I  don't know  I've 
never tried nor do I care to try 

J:   I  want to see somebody pull something with their penis 
     right in front of me live, here in the studio. 

B:   You could do a lot of damage. 

J:   Really. 

B:   You could tear some tissue. You don't even want to joke 
around with....

AS:  Yeah. It's  in there in  some sort of socket  I'm sure. 
     What if it just pops right out. That would suck. 

J:   Well  it's like  saying, you  know, what  if we're  arm 
     wrestling and my arm pops out of the socket. 

AS:  That's true. 

J:   Things  are attached  with  muscles  and tendons.  Your 
     penis is attached with muscles and tendons. 

AS:  No it's a tissue that fills with blood, that's all, 

J:   Well it's attached. 

AS:  Well yeah, it's just skin though. It's not like it's an 
attached bone. 

J:   Well  if  Naboo  whatever  can pull  a  Jeep  with  his 

AS:  Naga Sathu. 

J:   Do you think that he has some super penis? 

AS:  No. 

J:   And yours is not so super? 

B:   He's been  practicing for  a long  ass time.  He didn't 
first start with a Jeep. 

J:   What about those guys that ? 

AS:  Mr. Lifto from the Jim Rose Circus. 

J:   He lifts stuff. 

AS:  He  lifts  stuff  with  his penis  and  he  lifts  like 
concrete blocks doesn't he? 

B:   But he started small. 

J:   So you gotta start small and practice and build up. 

AS:  I'm sure  there's a training  regime just, like  in any 

J:   Really? 
AS:  You don't start  out with a shot-put and  throw it, you 
know, fifty you know .... 

J:   Yards. 

AS:  Right, whatever. You gotta start small. 

J:   With like an acorn for instance. 

AS:  I don't  know. How do  you learn  how to, I  guess it's 
     like anything.  You practice, you get  better. You pull 
     things with your  penis. You go from an orange  to a 13 
     inch TV to maybe a motorcycle. 

J:   Can I, can  I put something out here, and  if you don't 
     like what I'm  about to say then go ahead  and just say 
     Jody shut  up. We  have so  many concert  tickets right 
     now,  just  flying out  of  all  our  pockets -  I  say 
     tomorrow morning if someone is  willing to come in here 
     and let me  tie something onto their penis  and if they 
     can  pull it  like five  feet.... Maybe  something like 
     five pounds, if they can pull  it five feet here in the 
     studio, we'll give them concert tickets. Their choice. 

AS:  Well, I'll  go along with that.  But I mean I  think it 
     should be a  'bid' thing. For example, Joe  can call up 
     and say yeah I'll pull an orange for you five feet, big 
     deal. Who wants to see that? 

J:   But if someone else can pull a 13 inch TV? 

AS:  Right.  Somebody  who's  gonna  do  something  kind  of 
     amazing, yeah we'd love to have you. 

J:   So their choice Godsmack & Deftones tickets or 

AS:  Three Doors Down. 

J:   Three Doors Down with Tantric and Lifehouse. 

AS:  Yes. 

J:   Their choice. 

B:   We're gonna see an amazing spectacle of penis pulling. 

J:   I wanna see some penis pulling. 

B:   I guarantee, I guarantee  there's people out there that 
     can  pull a  lot of  stuff with  their penis  and we're 
     gonna hear from them. 

AS:  Do you  think there's  a lot of  people out  there that 
     spend a  lot of  time practicing? I  mean if  they did, 
     wouldn't we hear about them in the news or like in some 
     show, like in the Jim Rose Circus? 

J:   You know  certain people  collect stamps?  Other people 
     pull stuff  with their penis. It's  whatever your hobby 

AS:  Well  this  guy did  a  freakin'  Jeep. I  don't  think 
anybody is gonna do that well. 

J:   That's incredible.

AS:  Yes it is. How about a Volkswagen? 

J:   Some sort of smallish Cabriolet type thing? 

AS:  A little lighter, yeah? 

J:   No, we don't need something like that. I'm sayin' like, 
     you  know, some  sort of  studio equipment  that weighs 
     like ten pounds. 

AS:  Let's say, for example, we get 20 people to call in and 
     say yes, I  can pull stuff with my penis.  Why don't we 
     get all 20 in to pull the Volkswagen? 

J:   Wow. 

AS:  That'll make the news. 

J:   That'd be something. 

AS:  Alright. Well, check it out. 421-107. It's 7:21. Coming 
     up  we're  gonna   give  you  a  chance   to  win  some 
     Godsmack/Deftones tickets  in a  different sort  of way 
     and  we're still  waiting for  the Stone  Temple Pilots 
     "Days of the Week." 

J:   Yeah, (clapping) whew.

AS:  It should be here any minute now. 

     [Recorded Voice  Over: 107.7,  The End, Music  News You 
Can Use -- with Steve the Producer. Now.] 

J:   If you  enjoyed Weezer's  new "Green" album  you waited 
     four years for, it looks  like you're not going through 
     that again. 

AS:  You have it, we have it.

J:   We have what? 

AS:  We have the new Stone Temple Pilots. 

J:   Oh nice. 

AS:  Alright, do that. 

J:   Alright, I'll do this real quick. 

J:   Uh, Weezer used  one day off to go into  the studio and 
     start recording new songs already. They've already laid 
     down demos  for twelve new songs  about sixteen minutes 
     of music. I'd imagine in  case you are wondering, among 
     the new songs one is called "American Gigolo," there is 
     an instrumental  called "Burnt  Jamb" that  is, j-a-m-b 
     like a  doorjamb because  they are clever.  Mikey Walsh 
     the bassist  says that they  do want  to put out  a new 
     album every year just like the bands in the sixties use 
     to  and that  waiting four  years was  obviously a  bad 

     Again Endless  Summer Concert #6 are  down with Tantric 
     and Lifehouse. Wednesday July  11, Pickeria, tickets on 
     sale  Friday 4:00  p.m.  at  Ticketmaster $27.50.  Also 
     Endless  Summer  Concert   #7,  Godsmack  and  Deftones 
     Friday, July 13 at the Gorge. Tickets go on sale 11a.m. 
     Ticketmaster, $35.00. Of course, listen all week to win 
     tickets before  you can  buy them  here on  the morning 
     show  and  inside of  Endmail  at for  extra 
     chances to win. 

AS:  Yeah. 

J:   That's it. 

AS:  Traffic. 

J:   I-5 north  bound heavy at  south bound 88th  street and 
     then  messy from  Oliver Place  to Seattle  Bridge. 1-5 
     south bound congested from  1-96 southwest to northeast 
     185th street  and shoreline continues heavily  at north 
     gate also  sluggish approaching the ship  Canal Bridge. 
     1-5  express lanes  are  heavy  through the  Convention 
     Center.  405 north  bound  congested  from the  Rednest 
     Curve to  Colecreek Parkway. 405 South  bound slow from 
     532 Northeast  85th Street and then  heavy at Northeast 
     44th south. Stop and go  through the Red Nest Curve and 
     then messy  from 167  to the  1-5 Interchange  at South 
     Center. 520 East Bound heavy stop and go throughout the 
     arboretum and that's your End traffic. 

AS:  Hmm. 

J:   You ready over there? 

AS:  Ah, yeah, I'm, I'm just  thinking to myself, you know I 
     bet if we had twenty  guys pulling on a Volkswagon with 
     their penises Q13 would cover it. 

J:   You think? 

AS:  Yes, I think they will cover it. 

J:   But we  don't, do  we have  enough concert  tickets for 
twenty guys? 

B:   Oh yeah. 

AS:  I'll buy them. 

J:   Yeah? 

AS:  Yes, alright, Brad. 

MV:  Yeah, I gotta question on this whole penis thing. 

AS:  Yeah. 

MV:  Well, dude seriously, how could you possibly attach it? 
     I mean are we talking duct tape? Are we talking ..... 

J:   No. No. 

AS:  Good question. 

J:   No, no.  I'm thinking  that we would  tie some  sort of 
string-like fabric around  ... 

AS:  No.  You tie  string  and something  that heavy  that's 
gonna like rip the skin. 

MV:  Yeah. Jody I love you  but you gotta understand its not 
built quite like that. 

J:   No,  I've seen  penises  once or  twice  before. I  can 
imagine that maybe bungee cord? 

AS:  What? 

AS:  Use  one of  hair  scrunchies or  like  a wristband  or 
     something  and double-up  and then  tie some  string to 

J:   Well how? 

MV:  Yeah, well, I don't know. 

AS:  Hair scrunchies! 

MV:  I'm all  for the  contest and, more  power to  you, but 
     that poor guy. If we're  talking like kite strings, god 
     help him. 

AS:  No, right.  That would like  sever the head  right off, 
especially for the circumcised nadoos. 

J:   Oh, we're not doing it  around the head, we're doing it 
     closer to the  bottom of the shaft, you  gotta get your 
     whole, I mean weights and levers. 

MV:  Yeah, but  there's not  like knobs  down there.  I mean 
what are you gonna  ..... 

AS:  There's not  really anything  to hold  on to,  it would 
slip all the way to the mushroom, if you will. 

MV:  Exactly. 

J:   There's not knobs. Are you sure? 

AS:  Yes. 

MV:  Last  time I  checked. No,  that's what  I was  curious 
     about. I think  it's a great idea, but  man, it's gonna 
     have to be tape or something. 

AS:  Well you  know Brad this  is all  for not if  you don't 
     actually know how  to pull anything with  your penis or 
     have never practiced it, right. 

J:   I'm gonna have  Bob, the producer, pull  down his pants 
     real quick and we're gonna  figure out some sort way to 
     tie stuff on it. 

AS:  Could you get us a hair crunchie please? 

J:   Scrunchie. 

AS:  Scrunchie. 

J:   We gotta  trial and error here  - is the way  to attach 
things to your penis. 

AS:  First we'll  have Bob try  it. Thank you very  much and 
     that's a fine point, you  don't want to use like flimsy 
     bad string. 

MV:  Absolutely not. It's bad, bad news. 

J:   Nobody's  duct  taping  anything  to  anybody's  penis, 
believe you me. 

AS:  Alright. We'll  investigate it, we'll look  into it and 
     see how we can actually  do it. Alright, coming up next 
     here check this out, this is  ah, I'm not going to play 
     the whole  thing or anything,  just a piece of  the new 
     Stone Temple  Pilots called "Days of  the Week". [Plays 
     two  lines of  music]. Alright  that's next.  The whole 
     thing on the End. 

     [Lengthy Commercial Break] 

                              *   *  *  *  * 

June l, 2001 

AS:  Andy Savage
J:   Jody 
B:   the Producer 
C:   Carl 
K:   Kevin
MV:  Male voice

AS:  Alright, you ready  for some music news?  It might take 
Carl a little while to get the harness on. 

     [Recorded Voice  Over: 107.7,  The End, Music  News You 
     Can Use -- with Steve the Producer. Now.] 

J:   So,  if  you've  been watching  VH-1's  "Most  Shocking 
     Moments  Of Rock.  Listen to  this. Mark  McGrath, he's 
     from Sugar  Ray, the front  man, he's hosting  it, he's 
     got  a  shocking  past  himself. If  you've  ever  seen 
     Backstage Sluts, 1,  11 and 111. He was  in that, doing 
     some shocking stuff.  He agreed to do the  show as long 
     as  the  network  downplayed his  involvement  in  that 
     series of porn films. He's in  it, Fred Durst is in it, 
     and they're doing very  nasty things with groupies. The 
     series director, porn star Matt  Zane shot back at Mark 
     McGrath and he  said that it was Mark's  decision to be 
     in the film  and even signed a release form.  To have a 
     fellow artist  censor you for your  personal reasons is 
     the  lowest of  low acts  that on  can commit.  So Matt 
     Zane,  pom  star,  firing  back  at  Mark  McGrath.  So 
     basically Mark was  just like sure I'll host  it if you 
     pretend like you never saw me in Backstage Sluts. 

     Blink  182  news.  Drummer  Travis  Barker  has  a  big 
     problem.  He's  been  telling people  that  a  deranged 
     stalker  has been  after him,  broke into  his house  a 
     number of  times, left letters  in each room  that read 
     ``I'm  watching you,  lock your  doors.'' And  then the 
     next  day, letters  again, ``P.S.,  lock your  doors.'' 
     Travis, obviously freaked out,  says since the incident 
     occurred he invested in  two 140-pound Rottweillers and 
     now carries a  gun to protect his family.  He says it's 
     not really  him that  he's worried  about, if  it comes 
     down it he  can kick the guy's ass.  He's worried about 
     his girlfriend. Well you know,  if it comes down to him 
     or this  weird guy, he's  like you know I'll  just beat 
     him up. But  if my girlfriend's in the  house while I'm 
     on tour, that's what I'm  worried about. He says now if 
     anyone comes into my house, they're gonna be sorry. 

     Rehab.  Singers  Brooks  and Danny  Boone  say  they've 
     always  felt  like  oddballs in  their  native  Atlanta 
     because they're white rappers.  Hmmm, I wonder why they 
     would feel  weird about that?  They say we're  the only 
     ones that  I know  of that are  rapping. They  say that 
     people usually look at white  rappers as a novelty act. 
     But, ``To me, rhyming is poetry and that is dateless.'' 

J:   If I  can get some of  these penis guys out  of the way 
here, I have some. . 

AS:  Wait  a minute.  I hate  to  interrupt, but  we have  a 
     problem here.  Apparently crazy Carl can't  get aroused 
     enough to get the harness on. 

J:   Oh really. 

AS:  Yes. 

C:   Actually,  the harness  that actually  goes around  the 
     scrotum is a little tight and I'm worried about.... 

AS:  Your testicles are too large. 

C:   We can't snap it through. 

J:   You're supposed to pull  them through there crazy Carl. 
It's like a belt. 

AS:  Kevin, could you go over and help him? 

J:   Oh God. 

K:   That's not in my job description. 

AS:  Well Carl do what you gotta do. Would anybody else like 
     to try? I mean if you can't get the harness on we can't 
     pull the car. 

J:   I think Joe the modulator should step up and try. 

AS:  Yeah virgin. 

J:   While he's  doing this,  let me  just mention  this one 
     thing. If you sign up for Endmail at for 
     your  exclusive  invitation  to another  penny  pincher 
     concert  with   Rehab.  It's  Tuesday,  June   12th  at 
     Graceland.  It's just  a buck  seven with  your printed 
     Endmail invite. For Endmail  listeners only. Of course, 
     you cannot get  in unless you are on  the Endmail list. 
     Just  another   reason  to  sign  up   for  Endmail  at 

AS:  And get there early or you  still may not get in 'cause 
it's kind of a first come first serve. 

J:   Not kind of. 

AS:  There's a fire code you know. 

J:   It is.

AS:  Here's traffic. 

J:   I-5 Southbound  heavy to just before  the Orange County 
     line.  405 Northbound  just  heavy  north of  northeast 
     44th.  405 Southbound  heavy  just  South of  Southeast 
     124th. And 167 Northbound heavy  off 15th Street to the 
     Green River. And heavy approaching the 405 interchange, 
     and that's in traffic. 

AS:  Alright.  Kevin from  Love Zone,  these harnesses,  are 
     they specifically  made for larger  men or what  is the 
     deal here?  I mean, how  big do you  have to be  to get 
     into this harness? 

K:   I believe that they're kind of a one size fits all. 

AS:  Yeah? So you  can be very small and  it doesn't matter? 
     I'm  not trying  to make  fun of  anybody here.  But, I 
     mean, maybe Carl has a half inch whatever and can't get 
     it thru the harness. 

MV:  I think  Carl wasn't smart  enough to it button  and so 
     he's making up  a story about ``Oh, I'm too  big to put 
     it on.''

J:   Joel's making fun of crazy  Carl. I feel things tensing 
     up in the studio. Joel,  he's crazy. You never poke fun 
     at a crazy man. 

AS:  Alright. All you  guys that are here,  could you please 
grab a harness from Kevin. 

J:   Yeah. 

AS:  And try and put it on. 

J:   Yeah. 

AS:  And  then we'll tie  a piece  of rope  to it.  And then 
we'll yank you around like dogs .

     [Lengthy Commercial Break] 

                   DISSENTING STATEMENT OF 

Re:  Entercom  Seattle  License, LLC,  Licensee  of  Station 
KNDD(FM),Seattle, Washington, Memorandum Opinion and Order

     I   dissent   from   today's  decision   upholding   an 
Enforcement Bureau  decision that  I believe  is inadequate.  
In response  to complaints about two  separate broadcasts on 
KNDD, the Enforcement Bureau  proposed a forfeiture of $7000 
for  each  incident  of  airing  indecent  material.   In  a 
subsequent  order,  the Bureau  reduced  the  fine for  each 
broadcast by $1000.  I am  concerned that this fine for what 
the  majority  concludes is  a  violation  of the  indecency 
statute  will  be  easily  absorbed as  a  ``cost  of  doing 
business.''  I  am further troubled that  the Bureau, rather 
than the Commissioners, made the initial determination.  Our 
enforcement  actions should  send a  message that  licensees 
cannot ignore  their public interest  responsibilities.  The 
Commission's action today fails to do so. 
                        STATEMENT OF

Re:  Entercom  Seattle  License,  LLC, Licensee  of  Station 
     KNDD(FM), Seattle, WA, Memorandum Opinion and Order

     Consistent with my past statements, I believe we should 
be fining broadcasters on a ``per utterance'' basis.53  


     1  See Letter from  Chief, Investigations and Hearings 
Division, Enforcement  Bureau to Entercom  Seattle License, 
LLC, dated July 5, 2001.   

     2  See Letter  from John  C. Donlevie,  Executive Vice 
President,  Entercom   Seattle  License,  LLC,   to  Chief, 
Investigations and  Hearings Division,  Enforcement Bureau, 
dated August 15, 2001.

     3 See Program transcript, Attachment.  

     4 Id. at 10-13, 13-15, 18-19.  

     5 Id. at 12, 15.

     6 Id. at 18-19.

     7 Entercom  Seattle License,  LLC, Notice  of Apparent 
Liability  for Monetary  Forfeiture,  17 FCC  Rcd 1672  (EB 
2002).  The complaint also  alleged that KNDD(FM) broadcast 
indecent material on May 31, 2001.   17 FCC Rcd at 1674, n. 
9.  However,  the Bureau denied the  complaint with respect 
to this material. 

     8  See Response  to Notice  of Apparent  Liability for 
Forfeiture of Entercom Seattle License, LLC, dated February 
27, 2002.  (``Entercom NAL Response'').

     9  47 C.F.R. § 1.80(f)(3). 

     10 Entercom NAL Response at 4-5.

     11 Id. at 6-10. 

     12 Id. at 2, n. 1.  

     13 Id. at 10, n. 5.

     14  Entercom Seattle  License, LLC, Apparent Liability 
for  Forfeiture, Forfeiture  Order,  17 FCC  Rcd 18347  (EB 

     15 Entercom NAL Response at 4.  

     16  Application for Review at 4-5.   

     17  Id. at 6-11.

     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  In  FCC v.  Pacifica Foundation, the  Court quoted 
the  Commission's  definition  of indecency  with  apparent 
approval.   FCC   v.  Pacifica  Foundation,  438  U.S.  726 
(1978).  In addition,  the  D.C. Circuit  Court of  Appeals 
upheld  the definition  against constitutional  challenges. 
Action  for Children's  Television v.  FCC, 852  F.2d 1332, 
1339 (D.C.  Cir. 1988)  (``ACT I''); Action  for Children's 
Television v.  FCC, 932 F.2d  1504, 1508 (D.C.  Cir. 1991), 
cert denied,  112 S. Ct.  1282 (1992) (``ACT  II''); Action 
for Children's  Television v. FCC,  58 F.3d 654,  657 (D.C. 
Cir.  1995), cert  denied,  116 S.  Ct.  701 (1996)  (``ACT 

     21    ACT I, 852 F. 2d 1332.    

     22  ACT III, 58 F.3d 654.  

     23   Entercom NAL Response at 3.

     24   Application for Review at 3-5.

     25   Attachment at 10, 18.  

     26    Entercom Seattle  License,  LLC, 17  FCC Rcd  at 
18349, ¶ 8.

     27   Id. at 17 FCC Rcd 18350, ¶ 12.  

     28    Entercom Seattle  License,  LLC, 17  FCC Rcd  at 
1675, ¶ 9.  Attachment at 10-11, 16, 18-19.  

     29 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 
(emphasis in original).  

     30 Id. at 8002-15, ¶¶ 8-23.  

     31 Id. at 8003, ¶ 10.

     32 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). 

     33 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'').

     34  Application for Review at 4-5.  

     35  See Entercom  Seattle License, LLC, 17  FCC Rcd at 
1674, ¶ 9.  

     36   Entercom cites Letter  from Chief, Complaints and 
Investigations  Branch,  Enforcement Division,  Mass  Media 
Bureau ( Oct. 26, 1989).   

     37  See, e.g.,  Complaints  Against Various  Broadcast 
Licensees  Regarding Their  Airing  of  The ``Golden  Globe 
Awards'' Program, Memorandum Opinion  and Order, 19 FCC Rcd 
4975   (2004)  (petitions   for  reconsideration   pending) 
(Commission reverses  Enforcement Bureau's  initial finding 
that isolated use  of the ``f-word'' by a  performer is not 
actionably indecent).   

     38   Id. at ¶ 12.   

     39  Application for Review at 8.  

     40  Id. at 8-9.

     41   Entercom  cites the following cases:   Capstar TX 
Limited Partnership (KXTQ(FM)), 15 FCC Rcd 19615, 19619 (EB 
2000)(segment  with  discussion   of  deformities  in  male 
genitals).    Independent    Group   Limited    Partnership 
(WWWE(AM)),  6  FCC  Rcd,  3711,  3712  (MMB  1990),  which 
included a humorous discussion  of a man's ``birth defect'' 
--  a  penis  on  his   head,  as  well  as  discussion  of 
masturbation, oral sex, copulation, and urination; Goodrich 
Broadcasting, Inc. (WVIC-FM),  6 FCC Rcd 2178,  aff'd 6 FCC 
Rcd  7484 (MMB  1991) which  involved 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 as well  as on how size  affects sexual 
performance;  The Rusk  Corporation (KLOL(FM)),  5 FCC  Rcd 
6332,  6334-35   (MMB  1990),  which  included   an  on-air 
discussion concerning shaving the  female genitalia and on-
air references to ``Aunt Vagina.''  This precedent is cited 
in the Forfeiture Order.  17 FCC Rcd at 18350, n. 11.  

     42  Attachment at 10, 18.  

     43   See Indecency  Policy  Statement, 16  FCC Rcd  at 
8004,   citing   Infinity  Broadcasting   of   Pennsylvania 
(WYSP(FM)),  2  FCC  Rcd 2705  (1987)  (subsequent  history 
omitted)  (finding  vulgar  and  lewd  references  to  male 
genitals, including discussion of use of testicles as Bocci 
balls, met the indecency definition).

     44  Application for Review at 9-11.

     45   See Indecency  Policy  Statement, 16  FCC Rcd  at 
8010-13.  See  also, Entercom Seattle License,  LLC, 17 FCC 
Rcd at 18350, ¶ 10.  

     46 Indecency Policy Statement,  16 FCC Rcd at 8002-15.  
See,  e.g.,  Capstar  TX  Limited  Partnership  (KTXQ(FM)), 
Notice of  Apparent Liability  for Monetary  Forfeiture, 15 
FCC   Rcd   19615,   19619  (EB   2000)(forfeiture   paid); 
Independent Group Limited Partnership (WWWE(AM)), Notice of 
Apparent  Liability for  Monetary  Forfeiture,  6 FCC  Rcd, 
3711,  3712  (MMB 1990);  KFI,  Inc.  (KFI(AM)), Notice  of 
Apparent Liability for Monetary Forfeiture, 6 FCC Rcd 3699, 
3700  (MMB 1989);  Goodrich  Broadcasting, Inc.  (WVIC-FM), 
Notice of Apparent Liability for Monetary Forfeiture, 6 FCC 
Rcd  2178, Apparent  Liability  for Forfeiture,  Forfeiture 
Order,  6 FCC  Rcd 7484  (MMB 1991);  The Rusk  Corporation 
(KLOL(FM)),  Notice  of  Apparent  Liability  for  Monetary 
Forfeiture, 5 FCC Rcd 6332, 6334-35 (MMB 1990). 

     47 521 U.S. 844 (1997).  

     48  122 S. Ct. 1389 (2002).  

     49  See, e.g., FCC v. Pacifica, 438 U.S. 726; ACT III, 
58 F.3d 654; ACT I, 852 F.2d 1332.

     50  See Infinity  Broadcasting Operations, Inc. (WKRK-
FM), Apparent  Liability for Forfeiture,  Forfeiture Order, 
18  FCC Rcd  26360,  ¶  5 and  n.1  (2003), recon.  denied, 
Memorandum  Opinion  and  Order  19  FCC  Rcd  4216  (2004) 
(petition for reconsideration pending). 

     51 47 C.F.R. § 1.115(g).

     52 See 47 C.F.R. § 1.1914.

     53  See,  e.g.,  Separate  Statement  of  Commissioner 
Martin, Infinity Broadcasting Operations, Inc., Licensee of 
Station  WKRK-FM,  Detroit,  Michigan, Notice  of  Apparent 
Liability,  18  FCC  Rcd.  6915, 6939  (2003)  (urging  the 
Commission to fine violators ``per utterance'').