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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
COMMUNICAST CONSULTANTS, INC. ) Control No. CN9900724
) NAL/Acct. No. X32080018
Licensee of Station KRXK(AM) ) Facility No. 12664
Rexburg, Idaho ) JJS
)
)
FORFEITURE ORDER
Adopted: October 11, 2000 Released:
October 12, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this forfeiture order, we impose a seven thousand
dollar ($7,000) forfeiture against Communicast Consultants, Inc.
(``CCI''), licensee of KRXK(AM), Rexburg, Idaho. We find that
CCI 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 July 14, 2000, the Chief, Enforcement Bureau, issued a
Notice of Apparent Liability for Forfeiture in the amount of
seven thousand dollars ($7,000) against CCI. Communicast
Consultants, Inc., DA 00-1567 (released July 14, 2000) (``NAL'').
CCI filed its response on September 7, 2000.
II. BACKGROUND
3. The Commission received a complaint alleging that CCI
broadcast indecent material during a Spanish-language call-in
talk show on or about January 12, 1999, between 8 a.m. and 10
a.m. A transcript of the broadcast in question was attached to
the NAL. We issued letters of inquiry, asking CCI to comment on
the complaint. CCI responded to our inquiries, asserting that
the material is not indecent and asking that it be allowed to
provide a certified English translation of the Spanish program if
the Commission decided to pursue this matter further. On May 23,
2000, we asked CCI to provide a certified translation. In a
phone conversation with Commission staff on June 14, 2000,
counsel authorized to speak on behalf of CCI stated that CCI
accepts the transcript provided in the letter of inquiry and
would not be filing a certified translation.
III. DISCUSSION
4. In arguing in its response that the material was not
indecent, CCI claims that the broadcast used ``correct anatomical
terms'' that would be heard in any clinical or instructional
course on human sexuality. CCI asserts that the material was not
patently offensive and that the NAL failed to consider adequately
the context of the conversation. Additionally, CCI argues that
the NAL is defective because it did not make any findings
concerning the contemporary community standards of the Spanish-
speaking community in the Rexburg, Idaho, area. According to
CCI, nearly all children in the Rexburg area would have been in
school when the program was broadcast and the Commission has not
demonstrated that any children heard the broadcast. CCI claims
that even if the program were indecent, there was no willful
violation because the programming was received by satellite and
the station had no way of knowing what would be broadcast. It
also asserts that approximately thirty other stations broadcast
the program in question and that the Commission has engaged in
``selective enforcement'' by taking action only against KRXK(AM).
Finally, CCI argues that a $7,000 forfeiture exceeds the profits
KRXK(AM) has earned during the period CCI has been the licensee
and that such a forfeiture would be ``economically crippling.''
(Emphasis in Original).
5. First, we reject CCI's argument that the material was
not indecent. 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), aff'd 3 FCC Rcd 930
(1987)(subsequent history omitted)(citing FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). CCI does not dispute that the
material discusses sexual activities, but it denies that the
material is ``patently offensive.'' While the use of certain
terms does not automatically make material indecent, we believe
the graphic sexual references, as well as the announcer's
comments, laughter, and jokes, show that the material was offered
in a pandering, titillating manner, rendering the material
``patently offensive.''
6. CCI's argument that the Commission must have evidence
about the community standards of the Spanish-speaking community
in the Rexburg area in order to find an indecency violation is
incorrect. The Commission's interpretation of the term
``contemporary community standards'' is consistent with the
definition set forth in the Supreme Court's decision in Hamling
v. United States, 418 U.S. 87 (1974), reh'g denied, 419 U.S. 885
(1974). In that case, which involved obscenity, ``the Court
explained that the purpose of `contemporary community standards'
was to ensure that material is judged neither on the basis of a
decisionmaker's personal opinion, nor by its effect on a
particularly sensitive or insensitive person or group.''
Infinity Broadcasting Corporation of Pennsylvania (WYSP(FM)), 3
FCC Rcd 930, 933 (1987) (subsequent history omitted), citing 418
U.S. at 107. The Court stated that decisionmakers need not use
any precise geographic area in evaluating material. 3 FCC Rcd at
933, citing 418 U.S. at 104-05. Consistent with Hamling, the
Commission's evaluation of allegedly indecent material is ``not
one based on a local standard, but one based on a broader
standard for broadcasting generally.'' 3 FCC Rcd at 933. We also
reject CCI's suggestion that we should not take enforcement
action because 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).
7. CCI may not correctly contend that the violation was
not willful because the program was a syndicated program received
by satellite and the station had no way of knowing what would be
broadcast. 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). In this case, CCI knew it was broadcasting
the 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). Moreover, CCI could have
used a delay mechanism to monitor the broadcast to ensure that
inappropriate material was not aired. Since CCI knowingly
broadcast the program, its actions were willful within the
meaning of the statute.
8. We also reject the argument that our decision to issue
an NAL represents improper ``selective enforcement.'' As is the
case with virtually all of our indecency cases, we initiated this
investigation in response to a complaint filed against KRXK(AM).
If we had received complaints against other stations that had
broadcast the same program, we would have similarly initiated an
investigation and taken appropriate enforcement action. Congress
has directed us to enforce the restrictions on broadcast
indecency, and CCI has not shown that it was treated differently
than any other station against which a complaint was filed.
9. Finally, we cannot accept CCI's claim that a $7,000
forfeiture would be ``economically crippling'' to station
operations. CCI did not provide any financial documentation to
support that claim. Moreover, after the NAL was released, CCI
received authorization to assign the license for KRXK(AM) to
Pacific Empire Holdings Corp. See File No. BAL-20000403ABH,
granted July 25, 2000. CCI has not shown that it would be unable
to pay the forfeiture from the proceeds of the sale. Moreover,
once CCI closes on the sale, the forfeiture will no longer have
an impact upon station operations. After reviewing all of the
factors required by Section 503(b)(2)(D) of the Act, we believe a
$7,000 forfeiture is appropriate in this case.
IV. ORDERING CLAUSES
10. 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,1 Communicast
Consultants, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of seven thousand dollars ($7,000), 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.
11. 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
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.
12. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to
Communicast Consultants, Inc. 341 West 1500 North, Rexburg, Idaho
83440.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).