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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-00-IH-0228
)
Citadel Broadcasting Company ) NAL/Acct. No.
200132080057
) Facility ID #11229
Licensee of Station KKMG(FM), )
Pueblo, Colorado )
MEMORANDUM OPINION AND ORDER
Adopted: January 7, 2002 Released:
January 8, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, we rescind the Notice of Apparent
Liability (``NAL'') in which we found that Citadel
Broadcasting Company (``Citadel''), licensee of Station
KKMG(FM), Pueblo, Colorado, apparently violated 18 U.S.C. §
1464 and Section 73.3999 of the Commission's rules, 47
C.F.R. § 73.3999, by willfully broadcasting apparently
indecent language.1 Having reviewed Citadel's response and
having again reviewed the relevant case law, we disagree
with our initial analysis and we now conclude that the
material at issue was not patently offensive under
contemporary community standards for the broadcast medium.
Accordingly, we conclude that the licensee did not violate
the applicable statute or our indecency rule, and that no
sanction is warranted.
II. BACKGROUND
2. The Commission received a letter dated July 18,
2000, complaining about repeated broadcasts of a song
entitled ``The Real Slim Shady'' on Station KKMG(FM). The
complaint included lyrics that the complainant contended are
offensive. After reviewing the lyrics, Enforcement Bureau
(``Bureau'') staff issued a letter of inquiry to Citadel,
licensee of the station involved. In its response to the
staff's inquiry, Citadel claimed that the song version that
the station aired was different from the one complained
about, and that the station carefully screened the broadcast
version to omit any offensive language through the use of a
muting device or overdubbed sound effect. In support,
Citadel submitted a copy of the ``radio edit'' version, and
argued that the lyrics contained therein are not indecent
under the applicable Commission standards.
3. On June 1, 2001, the Bureau issued a Notice of
Apparent Liability (``NAL'') which rejected Citadel's
arguments and found that the ``radio edit'' version of ``The
Real Slim Shady'' apparently violated the Commission's
indecency rule. In the NAL, we acknowledged that Citadel
attempted to render the song suitable for broadcast through
editing, but found that the licensee failed to purge several
apparently indecent references. To redress this apparent
rule violation, we concluded that a monetary sanction in the
base forfeiture amount of $7,000 appeared appropriate.
4. Citadel challenges the NAL's findings, arguing
that the version broadcast makes no explicit sexual or
excretory references, and is not patently offensive. In
this regard, Citadel contends that any of the song's sexual
or excretory references cited in the NAL are oblique, and
are intended merely to satirize and parody popular culture,
and not to titillate, shock, or pander to listeners. In
view of this, Citadel asks that the NAL's findings be set
aside and that a monetary forfeiture not be imposed.
III. DISCUSSION
5. It is a violation of federal law to broadcast
obscene or indecent programming. Specifically, Title 18 of
the United States Code, Section 1464 (18 U.S.C. § 1464),
prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' Congress
has given the Federal Communications Commission the
responsibility for administratively enforcing 18 U.S.C. §
1464. In doing so, the Commission may, among other things,
impose a monetary forfeiture, pursuant to Section 503(b)(1)
of the Communications Act (the ``Act''), 47 U.S.C. §
503(b)(1), for broadcast of indecent material in violation
of 18 U.S.C. § 1464. Federal courts have upheld Congress's
authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme
Court has determined that obscene speech is not entitled to
First Amendment protection. Accordingly, Congress may
prohibit the broadcast of obscene speech at any time.2 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.3 Nonetheless, the federal
courts consistently have upheld Congress's authority to
regulate the broadcast of indecent speech, as well as the
Commission's interpretation and implementation of the
statute.4 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.5 Consistent with a
subsequent statute and case law,6 under the Commission's
rules, no radio or television licensee shall broadcast
obscene material at any time, or broadcast indecent material
during the period 6 a.m. through 10 p.m. See 47 C.F.R. §
73.3999.
6. In enforcing its indecency rule, the Commission
has defined indecent speech as
language that first, in context, depicts or describes sexual
organs or activities. Second, the broadcast must be
``patently offensive as measured by contemporary community
standards for the broadcast medium.'' Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987)
(subsequent history omitted) (citing Pacifica Foundation, 56
FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). This definition has been
specifically upheld by the federal courts.7 The
Commission's authority to restrict the broadcast of indecent
material extends to times when there is a reasonable risk
that children may be in the audience. ACT I, supra. As
noted above, current law holds that such times begin at 6
a.m. and conclude at 10 p.m.8
7. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law
and upheld by the courts. See Industry Guidance on the
Commission's Case Law Interpreting 18 U.S.C. §1464 and
Enforcement Policies Regarding Broadcast Indecency
(``Indecency Policy Statement''), 16 FCC Rcd 7999 at 8015 ¶
24 (2001). ``Given the sensitive nature of these cases and
the critical role of context in an indecency determination,
it is important that the Commission be afforded as full a
record as possible to evaluate allegations of indecent
programming.'' Id. In evaluating the record to determine
whether the complained of material is patently offensive,
three factors are particularly relevant: (1) the
explicitness or graphic nature of the description; (2)
whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities;
and (3) whether the material appears to pander or is used to
titillate or shock. See Indecency Policy Statement, 16 FCC
Rcd at 8003 ¶ 10.
8. In the NAL, we found two passages in the edited
version of the song ``The Real Slim Shady'' to be apparently
indecent:
My bum is on your lips
My bum is on your lips
And if I'm lucky you might just give it a little
kiss
And that's the message we deliver to little kids
And expect them not to know what a woman's BLEEP
is
Of course, they're gonna know what intercourse is
* * * * *
*
It's funny cause at the rate I'm goin'
When I'm 30 I'll be the only person in the nursing
home flirting
Pinching nurses asses when I'm BLEEP or jerkin'
Said I'm jerkin' but this whole bag of Viagra
isn't workin.'
9. The passages in question, in context, refer to
sexual activity.9 Thus, the material warranted scrutiny.
Based on our review of Citadel's response, however, we
conclude that the material broadcast was not patently
offensive, and thus not actionably indecent.
10. With respect to the first key factor set out in
the Indecency Policy Statement, we agree with Citadel's
contention that the sexual references contained in the
song's ``radio edit'' version10 are not expressed in terms
sufficiently explicit or graphic enough to be found patently
offensive. Although the song, as edited, refers to sexual
activity, these references are oblique. In this regard, the
material is less explicit and graphic than every example of
indecent material mentioned in the Indecency Policy
Statement in connection with this factor. See id. at ¶¶ 13-
14.
11. We also agree with Citadel's contention, with
respect to the third key factor, that the sexual references
contained in the ``radio edit'' version, in the context
presented, do not appear to pander to, or to be used to
titillate or shock its audience. Thus, the sexual references
do not have the effect of a ``verbal shock treatment.'' See,
e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 757
(1978)(Powell, J., concurring in part and concurring in the
judgment). In this regard, the material is of less concern
than all of the examples mentioned in the Indecency Policy
Statement in connection with this factor. See id. at ¶
20.11
12. Consequently, based on our review of Citadel's
response in light of the applicable case law, we conclude
that Citadel did not violate the statute or the Commission's
indecency rule through its broadcast of the ``radio edit''
version of ``The Real Slim Shady.''
IV. ORDERING CLAUSES
13. Accordingly, pursuant to Sections 0.111(a)(7),
0.311 and 1.80(f)(3) of the Commission's rules, 47 C.F.R. §§
0.111(a)(7), 0.311 and 1.80(f)(3), IT IS ORDERED THAT the
Bureau's June 1, 2001, NAL against Citadel Broadcasting
Company, licensee of Station KKMG(FM), Pueblo, Colorado, is
hereby RESCINDED.
14. IT IS FURTHER ORDERED THAT a copy of this
MEMORANDUM OPINION AND ORDER shall be sent by Certified Mail
-- Return Receipt Requested to Kathleen A. Kirby, Esq. and
Elizabeth E. Goldin, Esq., Counsel for Citadel Broadcasting
Company, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 DA 01-1334 (EB rel. June 1, 2001).
2 See Miller v. California, 413 U.S. 15 (1973), reh.g
denied, 414 U.S. 881 (1973); Sable Communications of
California, Inc. v. FCC, 492 U.S. 115 (1989).
3 Sable Communications of California, Inc. v. FCC, supra
note 2.
4 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). See also
Action for Children's Television v. FCC, 852 F.2d 1332, 1339
(D.C. Cir. 1988) (``ACT I''); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991),
cert denied, 112 S.Ct. 1282 (1992) (``ACT II''); Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995),
cert denied, 116 S.Ct. 701 (1996) (``ACT III'').
5 ACT I, supra note 4, 852 F.2d at 1344 (``Broadcast
material that is indecent but not obscene is protected by
the first amendment; the FCC may regulate such material only
with due respect for the high value our Constitution places
on freedom and choice in what people say and hear.''). See
also United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813-15 (2000).
6 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 4.
7 In FCC v. Pacifica Foundation, supra, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra
note 4, 852 F.2d at 1339; ACT II, supra note 4, 932 F.2d at
1508; ACT III, supra note 4, 58 F.3d at 657.
8 ACT III, supra note 4.
9 Citadel amends its prior submission to indicate that the
third phrase actually broadcast was not ``when I'm BLEEP or
jerkin','' but instead ``when I'm BLEEP with jergens.''
10 We note that the song at issue here is not the same
version that was the subject of an earlier Bureau NAL. See
In re Liability of Capstar TX Limited Partnership
(WZEE(FM)), 16 FCC Rcd 901 (EB 2001) (forfeiture paid).
11 With regard to the comparison in this paragraph and
paragraph 10 with cases mentioned in the Indecency Policy
Statement, we do not mean to suggest that those cases
constitute a floor on what is indecent. But the fact that
all of the indecency cases cited in those sections involve
stronger facts than here does support our conclusion that
the material here is not indecent.