Click here for Microsoft Word Version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
THREE EAGLES OF COLUMBUS, INC. ) File No. 99040101
) NAL/Acct. No. X32080013
Licensee of Station KROR(FM) ) Facility #26649
Hastings, Nebraska ) JJS
)
FORFEITURE ORDER
Adopted: August 23, 2000 Released: August 24,
2000
By the Chief, Enforcement Bureau:
I. Introduction
1. In this forfeiture order, we impose a six thousand dollar
($6,000) forfeiture against Three Eagles of Columbus, Inc.
(``Three Eagles''), licensee of KROR(FM), Hastings, Nebraska. We
find that Three Eagles violated 18 U.S.C. §1464 and Section
73.3999 of the Commission's rules, 47 C.F.R. § 73.3999, by
broadcasting indecent material.
2. On April 28, 2000, the Chief, Enforcement Bureau, issued
a Notice of Apparent Liability for Forfeiture in the amount of
seven thousand dollars ($7,000) against Three Eagles. Three
Eagles Broadcasting, Inc., DA 00-951 (released April 28, 2000)
(``NAL''). Three Eagles filed its response (``Three Eagles
Response'') on May 30, 2000.
II. Background
3. The Commission received a complaint alleging that Three
Eagles broadcast indecent material on February 26, 1999 during
the ``Bob and Tom Show'' between 6:00 a.m. and 9:45 a.m. A
transcript of the broadcast in question is attached to the NAL.
On October 27, 1999, the Mass Media Bureau requested that Three
Eagles comment on the complaint. In its November 30, 1999
response, Three Eagles admitted broadcasting the material in
question, but denied that the material was indecent.
III. Discussion
4. Three Eagles argues that a variety of factors compel
the conclusion that no forfeiture should be imposed. First,
Three Eagles claims that prior to this broadcast, KROR(FM) had an
unblemished broadcast record under its ownership. Second, Three
Eagles argues that the program in question was a syndicated
program that Three Eagles monitored in good faith. Third, Three
Eagles claims that the broadcast was ``a short segment in a four-
hour program early on a morning in February when most children
who could intellectualize the broadcast would be in a school in
the small community of Hastings.'' Three Eagles Response, p. 2.
Fourth, Three Eagles claims that the $7,000 forfeiture proposed
is inconsistent with forfeitures imposed in other cases. It
finally argues that the action in this case is inconsistent with
the dismissal of an indecency complaint in Letter to Benjamin
Perez, Esq., File No. EB-00-IH-009 (EB May 18, 2000).
5. We reject Three Eagles' argument that a forfeiture is
inappropriate. The Commission defines broadcast indecency as
language or material that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987), affirmed 3 FCC Rcd 930
(1987) (subsequent history omitted) (citing FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). Three Eagles does not directly
contest the finding in the NAL that the material appeared to fall
within the statutory definition of indecency. It argues,
however, that the language at issue in Letter to Benjamin Perez,
Esq. ``was more egregious by far than the tone and content of the
KROR transmission.'' Three Eagles Response, p. 2. That argument
has no merit because, in order for material to be indecent, in
must not only be ``patently offensive'' but also must depict or
describe ``sexual or excretory activities or organs.'' While the
material in Perez was highly offensive, it did not fall within
the statutory definition of indecency. In contrast, the
broadcast material in this case falls squarely within that
definition. Moreover, while Three Eagles suggests that most
children would be in school during the time of the broadcast,
Congress has directed the Commission to enforce the ban on
indecent broadcasts during the morning time period at issue in
this case, and the United States Court of Appeals for the
District of Columbia Circuit has upheld that directive. See
Action for Children's Television v. FCC, 852 F.2d 1332, 1341
(D.C. Cir. 1988). Furthermore, while the program in question was
a syndicated program, the Commission has emphasized ``that the
licensee is ultimately responsible for all programming aired on
its station, regardless of its source.'' Revision of Radio Rules
and Policies, 7 FCC Rcd 6387, 6401 (1992). While Three Eagles
admits that it has monitored the program in question and has
expressed concerns about program content to the program supplier,
it does not claim to have taken any action with respect to this
particular broadcast. We believe a forfeiture is appropriate
because the broadcast meets the statutory definition of
indecency, the material was broadcast at a time when the
Commission has authority to regulate indecent programming, and
Three Eagles has not demonstrated any special circumstances that
would make a forfeiture inappropriate.
6. We also reject Three Eagles' argument that the amount
of the proposed forfeiture ($7,000) is inconsistent with
forfeiture amounts in other indecency cases.1 None of the cases
Three Eagles cites applied the Commission's Forfeiture Policy
Statement2 because the violations in those cases predated the
effective date of the Forfeiture Policy Statement. By
establishing $7,000 as the base forfeiture amount for indecency
violations, the Commission made the judgment that, in the absence
of mitigating or aggravating factors, $7,000 was an appropriate
amount. The fact that the Mass Media Bureau issued lower
forfeiture amounts in cases not decided under the Forfeiture
Policy Statement, which was adopted after notice and comment, is
not a basis for arguing that the forfeiture amount in this case
is too high. Three Eagles has not argued that the proposed
forfeiture amount is inconsistent with the Forfeiture Policy
Statement or any of the cases applying the statement. Our action
is consistent with cases decided under the Forfeiture Policy
Statement. See, e.g., Citicasters Co. (WXTB(FM)), 13 FCC Rcd
22004 (1998), forfeiture imposed FCC 00-230 (released June 27,
2000) ($23,000 forfeiture imposed for four indecent broadcasts),
Communicast Consultants, Inc., DA 00-1567 (released July 14,
2000) ($7,000 forfeiture proposed for indecent conversation
during a call-in show).
7. Three Eagles claims, and a review of the Commission's
records confirms, that prior to the violation at issue here,
Three Eagles had a history of compliance with the Commission's
rules. Section 503(b)(2)(D) of the Act, 47 U.S.C. §
503(b)(2)(D), requires the Commission to consider ``any history
of prior offenses,'' among other factors, when establishing a
forfeiture amount. We note, however, that Three Eagles was not
authorized to hold the KROR(FM) license until September 5, 1997.
See File No. BAL-19970701EB, granted September 5, 1997. Given
the relatively short period of time between the time Three Eagles
acquired the station and the date of the violation (February 26,
1999), we believe that Three Eagles can only receive limited
credit for its prior record of compliance. Based upon our
consideration of the record as a whole, we believe a $6,000
forfeiture is appropriate.
IV. Ordering Clauses
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, 47 U.S.C. § 503(b), and Sections 0.111, 0.311
and 1.80(f)(4) of the Commission's rules,3 Three Eagles of
Columbus, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of six thousand dollars ($6,000), for its willful violation of 18
U.S.C. § 1464 and Section 73.3999 of the Commission's rules, 47
C.F.R. § 73.3999.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's rules within 30
days of the release of this Forfeiture Order. If the forfeiture
is not paid within the period specified, the case may be referred
to the Department of Justice for collection pursuant to Section
504(a) of the Act, 47 U.S.C. § 504(a). Payment may be made by
credit card through the Commission's Credit and Debt Management
Center at (202) 418-1995 or by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above. Requests for full payment under
an installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C. 20554.
See 47 C.F.R. § 1.1914.
10. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent, by Certified Mail/Return Receipt Requested,
to Three Eagles' counsel, Richard F. Swift, Esq., Swift Law
Offices, 2175 K Street, N.W., Suite 350, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 The cases Three Eagles cites are Clear Channel Radio Licensee,
Inc., 13 FCC Rcd 17254 (MMB 1998), Jacor Broadcasting Corp., 13
FCC Rcd 4152 (MMB 1997), American Radio Systems License Corp., 8
CR 941 (MMB 1997), Nationwide Communications, Inc., 6 FCC Rcd
3695 (MMB 1990), and Guy Gannett Publishing Company, 6 FCC Rcd
3702 (MMB 1989).
2 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17107
(1997), recon. denied 15 FCC Rcd 303 (1999).
3 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).