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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CAPSTAR TX LIMITED ) Case No. 98070073
PARTNERSHIP ) NAL/Acct. No. 200132080001
) Facility #9620
Licensee of Station KTXQ(FM), ) JJS
Fort Worth, Texas )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 5, 2000 Released: October 6,
2000
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture, we
find Capstar TX Limited Partnership (``Capstar''), licensee of
Station KTXQ(FM), Fort Worth, Texas, apparently liable for a
seven thousand dollar ($7,000) forfeiture for an apparent
violation of 18 U.S.C. § 1464 and Section 73.3999 of the
Commission's rules, 47 C.F.R. § 73.3999, by broadcasting indecent
material.
II. Background
2. The Commission received a complaint concerning a
broadcast during the station's morning show on June 8, 1998
between 6:38 a.m. and 10:00 a.m. We are attaching to this notice
a transcript of the relevant portions of the program.
3. By letter dated June 8, 2000, we requested Capstar to
comment on the complaint. Capstar, through its corporate parent
Clear Channel Communications, Inc., filed its response on
September 1, 2000. In its response, Capstar explains that it
acquired control of KTXQ(FM) on May 29, 1998 and that within two
months after it acquired the station, it replaced virtually the
entire staff, including the disc jockeys identified as the male
voices on the transcript, in connection with a format change.
For those reasons, Capstar states that is cannot determine
whether the transcript accurately reflects what was broadcast.
III. Discussion
4. Section 503(b)(1)(D) of the Act provides in pertinent
part:
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection, to have--- violated any provision of
section 1304, 1343, or 1464 of title 18, United States
Code; shall be liable to the United States for a
forfeiture penalty.
Pursuant to 47 U.S.C. §§ 312(a)(6) and 503(b)(1)(D), the
Commission has statutory authority to take appropriate
administrative action when licensees broadcast material in
violation of 18 U.S.C. § 1464, which provides criminal penalties
for anyone who ``utters any obscene, indecent or profane language
by means of radio communication.''
5. The Commission has defined 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) (citing Pacifica Foundation,
56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). The United States Court of
Appeals for the District of Columbia Circuit has upheld the
Commission's authority to restrict the broadcast of indecent
material at times when there is a reasonable risk that children
may be in the audience. Action for Children's Television v. FCC,
852 F.2d 1332 (D.C. Cir. 1988). The court subsequently concluded
that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a
properly tailored means of vindicating the government's
compelling interest in the welfare of children. Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S. Ct. 701 (1996).
6. In its response, Capstar argues that the material does
not ``clearly and inescapably [describe] sexual or excretory
activities and organs in patently offensive terms'' and that, at
worst, the material is in ``bad taste.'' We disagree. The
material in question not only discusses sexual activities and
organs, the disc jockeys' comments and the context of the
material demonstrate that the material was presented in a
pandering and titillating, patently offensive manner, as opposed
to a clinical discussion of sex. While we agree with Capstar
that neither subject matter nor the use of particular words is
sufficient to render material indecent, our conclusion that the
material appears to be indecent is based upon the material as a
whole and the context in which it is offered.
7. We also reject Capstar's argument that this material
cannot be found indecent because it was no more graphic or less
graphic than material in cases where the Mass Media Bureau did
not take enforcement action. In that regard, Capstar cites
Letter from Chief, Complaints and Investigations Branch, Mass
Media Bureau to Gerald P. McAtee, 8210-EJS (issued October 26,
1989), Letter from Chief, Complaints and Investigations Branch,
Mass Media Bureau to Mr. R.D. Merkel, 8310-TRW, April 21, 1997
Memorandum from Thom Winkler to WIOD(AM) Complaint File (Control
No. 97010196), and Letter from Chief, Complaints and
Investigations Branch, Mass Media Bureau to Mrs. Barbara Onisko,
8310-TRW (issued May 15, 1997). We note that while material that
is more graphic is more likely to be found indecent, the context
in which material is offered is essential to making a
determination as to whether material is indecent. For example,
the ``Geraldo'' episode discussed in the Letter to Gerald P.
McAtee was not patently offensive within the meaning of the
statute because the program as a whole was a serious discussion
of sex with people knowledgeable in the field. See also King
Broadcasting Co. (KING-TV), 5 FCC Rcd 2971 (1990) (broadcast of
high school sex education class not indecent because material was
clinical or instructional). In contrast, the material in this
case cannot be said to be clinical or instructional.
8. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
Section 1.80(a) of the Commission's rules, 47 C.F.R. § 1.80(a),
both state that any person who willfully or repeatedly fails to
comply with the provisions of the Act or the rules shall be
liable for a forfeiture penalty. For purposes of Section 503(b)
of the Act, the term ``willful'' means that the violator knew it
was taking the action in question, irrespective of any intent to
violate the Commission's rules. See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
9. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.1 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.'' See 12 FCC Rcd at 17110. While
Capstar argues that the station has a history of compliance with
the Commission's rules, such that any forfeiture should be lower
than the base amount, we believe it is appropriate to look at the
history of all stations controlled by Clear Channel
Communications, Inc. (``Clear Channel''), Capstar's parent. We
note that stations controlled by Clear Channel have recently
committed indecency violations, as well as violations of the rule
regarding broadcast of telephone conversations and the rule
regarding licensee-conducted contests. See Citicasters Co., DA
00-1640 (released July 26, 2000) ($6,000 NAL for violation of
Section 73.1206 of the Commission's rules, forfeiture paid),
Citicasters Co., DA 00-1435 (released June 28, 2000), ($7,000
forfeiture order for violation of 18 U.S.C. § 1464, forfeiture
paid), Citicasters Co., 15 FCC Rcd 11906 (2000) ($23,000
forfeiture order for violation of 18 U.S.C. § 1464, forfeiture
paid), Citicasters Co., DA 00-1016 (released May 9, 2000) ($4,000
NAL for violation of Section 73.1216 of the Commission's rules,
forfeiture paid), Clear Channel Broadcasting Licenses, Inc., 15
FCC Rcd 2734 (EB 2000) ($4,000 NAL for violation of Section
73.1216 of the Commission's rules, forfeiture paid). Under these
circumstances, we reject Capstar's claim that it is entitled to a
reduction based upon a record of overall compliance with the
Commission's rules. Accordingly, after reviewing all of the
circumstances, we believe a $7,000 forfeiture is appropriate in
this case.
IV. Ordering Clauses
10. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311, and 1.80 of the Commission's rules,2 that Capstar
TX Limited Partnership is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of seven thousand dollars
($7,000) for willfully violating 18 U.S.C. § 1464 and Section
73.3999 of the Commission's rules.
11. IT IS
FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, that within thirty days of the release of this Notice,
Capstar SHALL PAY to the United States the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. 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 should note the
NAL/Acct. No. referenced above.
13. The response, if any, must be mailed to Charles W.
Kelley, 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 file number
listed above. 14. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to Capstar's
counsel, Dorann Bunkin, Esq., Wiley, Rein & Fielding, 1776 K
Street, N.W., Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau Radio Station: KTXQ-FM, Fort Worth, TX
Date/Time Broadcast: June 8, 1998, between 6:38 a.m. and 10 a.m.
Material Broadcast: Comments: Lex and Terry
98070073
KTXQ
MV: Male Voice
M2: Second Male Voice
FV: Female Voice
FC: Female Caller
* *
FC: Christi, I have a boy friend who's really big and we've been
together like for 3 years now and it's still, it's kind of
painful to have sex. I was just wondering if you have any
advice for me on how to.
M2: Yeah, send him over.
MV: Sam Kennison gave advice. (Unintelligible).
FV: Now you're talking for just straight intercourse?
FC: Intercourse and when I suck his (Bleep).
M2: Get that.
M2: Can't say that.
FC: Okay, sorry. Like when I go down (Bleep).
M2: Going to lose our jobs.
FC: He's too big, I mean, I get, I try.
FV: I have a small mouth also. (Laughter).
M2: Oh, okay.
FV: Listen, listen, listen, listen, just don't do it.
(Laughter).
MV: Oh come on, I got better advice than that. And listen, in
the words of Sam Kennison, have him lick the alphabet.
Alright, if he gets you nice and ready by doing things
orally, the girl can much better handle a big penis.
(Unintelligible).
M2: Oh man, whoa. (Unintelligible). That's fine.
MV: The girl has to be lubricated. And the guy has got to do
things to relax her muscles. These are the things you can
say on radio, right?
M2: Sure. (Unintelligible).
MV: Once the girl is all ready and her muscles are nice and
comfortable and they're moving, you know, and all.
(Unintelligible). I mean, they give birth don't they?
(Unintelligible). So where are you guys going when you got
a new career?
* *
FC: I have another question, too.
MV: Okay.
FC: Some of these movies that I've seen, they have guys that
have like deformities of their genitals. Do you guys have.
M2: Oh geez.
FC: Open calls for these people or how.
KTXQ-FM 2.
MV: Well, explain a deformity. Explain what do you mean?
FC: Okay there's one I saw a tape with one guy's.
M2: Thing.
FC: No.
M2: Things.
FC: His testicles looked as big as a soccer ball.
MV: Oh, I know what you're talking about, that's a
(Unintelligible). They make those fake, that's all fake,
it's for esthetics(?). They have two penises on one guy,
one guy's got a basketball.
FC: That one too.
MV: That's all fake, that's, it's just a kinky thing. They want
to see something out of the ordinary. (Unintelligible).
* *
_________________________
1 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17113
(1997) recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture Policy
Statement).
2 47 C.F.R. § 0.111, 0.311 and 1.80.