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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                  )

Adopted:  October 5, 2000               Released:    October   6, 

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 

                         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 

     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.


                         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

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.  
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.  
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 
2  47 C.F.R.  0.111, 0.311 and 1.80.