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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Three Eagles of Columbus, Inc. ) Control No.
99040101
) NAL/Acct. No. X32080013
Licensee of Station KROR(FM), ) ID# 26649
Hastings, Nebraska )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 27, 2000 Released: April
28, 2000
By the Chief, Enforcement Bureau
I. Introduction
1. In this Notice of Apparent Liability for
Forfeiture, we find Three Eagles of Columbus, Inc. (TEC),
licensee of Station KROR(FM), Hastings, NE, apparently
liable for a forfeiture in the amount of seven thousand
dollars ($7,000) for a violation of 18 U.S.C. § 1464 and
Section 503(b)(1)(D) of the Communications Act of 1934, as
amended, (the ``Act'') 1 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 information indicating that
Station KROR(FM), Hastings, NE, may have violated 18 U.S.C.
§ 1464 by broadcasting allegedly indecent material during
the "Bob and Tom Show" on February 26, 1999, between 6 a.m.
and 9:45 a.m. A transcript of those portions of the
allegedly indecent broadcast that are the subject of this
action, taken from a tape submitted by the complainant, is
attached. By letter dated October 27, 1999, we requested
TEC to comment on the complaint. TEC filed its response on
November 30, 1999.
III. Discussion
3. 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.
4. 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. TEC's response to our October 27, 1999, letter of
inquiry indicates that the ``Bob and Tom Show'' is a
syndicated program carried by station KROR(FM). During the
broadcast of the program, the station has a local announcer
on the ``board'' to allow for editing of material the
station believes to be indecent, obscene or otherwise
offensive. TEC contends the cited material was not indecent
but constituted, ``in the major, innuendo or double
entendre'' which at the worse could be considered to be in
bad taste. Moreover, it contends that the broadcast was an
isolated occurrence during a four-hour program. We are
unpersuaded by TEC's arguments. The cited language dwells
at length on sexual innuendoes and cannot be considered
fleeting. Moreover, the fact that this is only one segment
of a four-hour program is not decisionally significant. We
find that the material relies principally on innuendo to
convey a sexual meaning which is unmistakable and therefore,
is actionably indecent. Great American Television and Radio
Company, Inc. (WFBQ-FM), 6 FCC Rcd 3692 (MMB 1990).
7. It appears that the subject excerpts are indecent
in that they contain language that describes sexual and/or
excretory activities or organs in patently offensive terms.
Because the material aired between 6:00 a.m. and 9:45 a.m.,
when there was a reasonable risk that children may have been
in the audience, it is legally actionable. Thus, it appears
that on February 26, 1999, Station KROR-FM, violated 18
U.S.C. § 1464 by airing indecent programming.
8. Section 503(b) of the Act and Section 1.80(a) of
the Commission's Rules 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
Communications 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.2
9. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.3 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,4 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.''5 After
reviewing all of the circumstances, we believe a $7,000
forfeiture appears to be 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,6
that Three Eagles of Columbus, Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully violating Section
503(b)(1)(D) of the Communications Act of 1934, as amended,
and Section 73.3999 of the Commission's rules.
11. IT IS FURTHER ORDERED, pursuant to Section
1.80 of the Commission's Rules, 7 that within thirty days of
the release of this Notice, TEC 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 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 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 Three Eagles of Columbus, Inc.'s counsel, Richard F.
Swift, Esq., Suite 350, 2175 K Street, N.W., Washington,
D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment
Radio Station: KROR-FM, Hastings, NE
Date/Time Broadcast: February 26, 1999, between 6 a.m.
and 9:45 a.m.
Material Broadcast: Bob and Tom Show
99040101
MV: Male Voice
M2: Second Male Voice
M3: Third Male Voice
FV: Female Voice
GS: Girls Singing
* *
MV: Hi Felicia, gee, I love your dress and your hair looks
so shiny and manageable, are you still shampooing with
Head and Shoulders?
FV: Gosh Chick, I stopped using Head and Shoulders a long
time ago. I mean honestly, who grows hair on their
shoulders anyway?
MV: Yeah, right. So what are you using now?
FV: Well, it's like Head and Shoulders only without all
those additives. It's just called Head. Let's tell
them about it girls.
GS: If you're tired of old shampoo and (Unintelligible) and
feeling blue, yeah, yeah, just remember what I said,
yeah, yeah, you'll feel better if you get some Head.
MV: Wow. Where can I get Head?
FV: Lots of places Chick, you can stop by my place later and
I'll be happy to give you some Head. (Laughter). In 15
minutes I'll have you shampooed, styled and blown dry.
MV: Gee, you don't miss a lick do you? Head sounds great
but is it expensive?
FV: Not at all Chick, my brother says there are places
downtown where you can get Head for less than 10
dollars.
MV: Golly, at that price everyone should be getting Head.
M2: That's right Chick, when you say Head, you've said a
mouthful. Hi, I'm Dr. Raymond Fa-lot-ee-oh from Frig
Them All Industries here to tell you why you should get
Head. First it lubricates each limp hair follicle
leaving an erect glistening shaft. Then the scalp's
natural oils are sucked out of the root, leaving your
hair soft, shiny and exhausted. Nothing does the job
like Head.
M3: Great, can I get Head from my hairdresser Bruce?
M2: Probably, but you might want to try your girlfriend
first.
GS: So ask and get some Head today, yeah, yeah, little
squirt goes a long, long way, yeah, yeah, you'll look
better and you'll feel terriff(?) yeah, yeah, when you
get Head you're a lucky stiff.
MV: Want hair with lots of volume, nothing gets it up like
Head. Available at a price you won't find hard to
swallow. And it's going down every day.
FV: Honey, we're out of shampoo, can you go out and get some
Head?
MV: What did you say?
FV: I said, I want you to go out and get Head.
MV: Oh thank you sweet Jesus. I'm going downtown.
M2: And Head makes a great holiday gift. Last Christmas my
wife gave me some Head. Then I gave her a pearl
necklace. I've never seen her so choked up.
M3: My girlfriend used to give me Head, then we got married.
Now I'm lucky if I get Jergen's lotion and a National
Geographic. (Laughter).
GS: Once you start you won't want to stop, Head feels so
good you might blow your top, give Head in the shower
you'll want to come, give Head. Mm mm mm mm. If you're
tired of your old shampoo, yeah, yeah, frustrated and
feeling blue, yeah, yeah, just remember what I said,
yeah, yeah, you'll feel better if you get some Head,
you'll feel better if you get some Head.
MV: Oh yeah, oh, oh. Head Shampoo, come on give it a shot.
M2: My hair looks great. (Laughter). Use a nap.
MV: A little Head shampoo for you.
M2: By request here on the Bob and Tom program.
* *
_________________________
1 18 U.S.C. § 1464, 47 U.S.C. § 503(b)(1)(D).
2See Southern California Broadcasting Co., FCC Rcd 4387
(1991).
3The 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).
4 12 Fcc Rcd . at 17110.
547 U.S.C. § 503(b)(2)(D).
647 C.F.R. § 0.111, 0.311 and 1.80.
747 C.F.R. § 101.53.