******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** 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.