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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Citicasters Co. ) Control No. 98050026
) NAL/Acct No. 918ed0001
Licensee of Station WXTB(FM) )
Clearwater, FL )
Facility ID # 11274 )
)
FORFEITURE ORDER
Adopted: June 23, 2000 Released: June 27, 2000
By the Commission:
1. In this Forfeiture Order, we issue a monetary
forfeiture in the amount of twenty-three thousand dollars
($23,000) against Citicasters Co. (``Citicasters''), licensee of
Station WXTB(FM), Clearwater, FL, for willful and repeated
violations of 18 U.S.C. § 1464, which prohibits the broadcast of
indecent material.
2. On October 16, 1998, the Commission issued a Notice of
Apparent Liability for Forfeiture to Citicasters in the amount of
twenty-three thousand dollars ($23,000), for the broadcast of
indecent material during the ``Bubba, the Love Sponge'' program
on January 7, 18, and 22, 1998, and May 8, 1997, between 6 a.m.
and 10 a.m. Citicasters Co. (WXTB(FM)), 13 FCC Rcd 22004 (1998)
(``NAL''). By letter dated December 2, 1998, Citicasters, by its
counsel, responded to the NAL. Citicasters admitted the
broadcast of the material cited in the NAL at or about the times
noted and in substantially the form presented in the transcripts
attached to the NAL. Citicasters, however, asked for leave to
supplement its letter response within 30 days after the
Commission issues its ``industry guidance relating to its case
law interpreting 18 U.S.C. § 1464 and the FCC's enforcement
policy with respect to broadcast indecency'' as it has committed
to do.1 Specifically, Citicasters claims that issuance of
indecency guidelines is ``necessary'' in order for it to make a
``reasoned determination of whether any aspects of the materials
cited'' in the NAL are in violation of 18 U.S.C. § 1464.
Citicasters also asserts that the guidelines are ``necessary to
help it evaluate'' why a forfeiture should not be imposed or
should be reduced.
3. The Commission's ``definition of indecency has remained
unchanged for years, and in rulemaking proceedings as well as in
the context of specific rulings, we have amply illustrated what
broadcasters may and may not do.'' WQAM License Limited
Partnership (WQAM(AM), 15 FCC Rcd 2518, 2519 (2000), petition for
reconsideration pending. The Commission committed to publish
guidelines to assist broadcast licensees in their compliance with
indecency regulations by consolidating information regarding our
past rulings in this area. See 15 FCC Rcd at 2519 and footnote
1, supra. However, those guidelines will not change the
definition of indecency or the Commission's enforcement
procedures, both of which have been affirmed by the courts.2
Moreover, as we have previously stated, ``[w]hile we still intend
to issue such guidance, we continue to believe that our existing
rulemaking orders and case law provide sufficient guidance.''
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines
(Reconsideration Order), 15 FCC Rcd 303, 306 (1999). Thus, we
find no merit to Citicasters' argument that it is unable to
substantively respond to the NAL until after issuance of the
guidelines and we see no reason to await issuance of the
guidelines before imposing the forfeiture order in this case. In
the absence of any substantive response to our NAL, we impose a
forfeiture for the full amount originally proposed.
4. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended (the
``Act''),3 and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's rules,4 Citicasters Co. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty-three thousand dollars
($23,000) for willfully and repeatedly violating 18 U.S.C. §
1464.
5. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's rules5 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.6 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. 20554.7
6. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by Certified Mail Return Receipt Requested to
Citicasters Co.'s counsel, Marissa G. Repp, Hogan & Hartson, 555
Thirteenth Street, N.W., Washington, D.C. 20004-1109.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 Citicasters' letter response at 2. See paragraph 2(b) of the
February 22, 1994, Agreement for Settlement and Dismissal with
Prejudice between the United States of America, by and through
the Department of Justice and Federal Communications Commission,
and Evergreen Media Corporation of Chicago, AM, Licensee of Radio
Station WLUP(AM). United States v. Evergreen Media Corp., Civ.
No. 92 C 5600 (N.D. Ill., E. Div. 1994).
2 Action for Children's Television v. FCC, 852 F. 2d 1332, 1339
(D.C. Cir. 1988) (``ACT I'') (subsequent history omitted); Action
for Children's Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995),
cert. denied, 116 S.Ct. 773 (1996) (``Act IV'') (rejected a
facial challenge to the Commission's procedures for imposing
forfeitures for the broadcast of indecent material). See also
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines
(Reconsideration Order), 15 FCC Rcd 303, 305-06 (1999) (courts
have upheld the Commission's procedures for imposing forfeitures
and its indecency standard).
3 47 U.S.C. § 503(b).
4 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 504(a).
7 See 47 C.F.R. § 1.1914.