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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-IH-0715
) FRN: 0003245347
ENTERCOM SACRAMENTO LICENSE, LLC ) NAL/Acct. No. 200432080020
) Facility ID No. 20354
Licensee of Station KRXQ(FM), )
Sacramento, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 22, 2004 Released: October 15, 2004
By the Commission: Commissioners Copps and Martin approving
in part, concurring in part and issuing
separate statements.
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), issued pursuant to Section 503(b) of
the Communications Act of 1934, as amended (the ``Act''),
and Section 1.80 of the Commission's rules,1 we find that
Entercom Sacramento License, LLC (``Entercom''), licensee of
Station KRXQ(FM), Sacramento, California, broadcast indecent
material on two separate occasions, in apparent willful and
repeated violation of 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999. Based upon our review of the facts and
circumstances in this case, we conclude that Entercom is
apparently liable for a forfeiture in the maximum amount of
Fifty-Five Thousand Dollars ($55,000).
II. BACKGROUND
2. This proceeding arises out of a series of written
complaints from a listener alleging that Station KRXQ(FM)
broadcast indecent material during segments of the ``Rob,
Arnie & Dawn In The Morning Show'' (the ``RA&D Show'')
between 7:00 a.m. and 10:00 a.m. on various dates in 2002
and 2003.2 After reviewing the complaints, audio tapes, and
transcripts provided by the Complainant, the Enforcement
Bureau directed a letter of inquiry (``LOI'') to Entercom
requiring further information about program segments that
Station KRXQ(FM) allegedly broadcast on September 13, 2002
(``Segment 1''), and January 17, 2003 (``Segment 2'').3
3. Entercom timely responded to the LOI.4 Entercom
states in its Response that it did not retain a recording of
the program that Station KRXQ(FM) broadcast on September 13,
2002. In the absence of a recording of its own, Entercom
maintains that it cannot conclusively determine that the
specific material set forth in Segment 1 actually was
broadcast over Station KRXQ(FM) on that date.5
Additionally, although Entercom concedes that Station
KRXQ(FM) has aired segments during the RA&D Show in which
``Arnie'' speaks in a young boy's voice, it maintains that
the transcript of the material contained in Segment 1, in
which one of the announcers speaks in a child's intonation,
omits dialogue among the show hosts that is typical of such
segment routines, thus creating a ``misimpression concerning
the totality and context'' of the material that was
broadcast.6 By contrast, Entercom confirms in its Response
that the material contained in Segment 2 was indeed
broadcast over Station KRXQ(FM), albeit on January 23, 2003,
not January 17, 2003, as alleged by the Complainant.7
4. Entercom argues that none of the material cited by
the Complainant to be indecent satisfies the Commission's
definition of indecency. In this regard, Entercom claims
that the material contained in Segment 1 was fleeting and
did not have an inescapable sexual import; and the material
contained in Segment 2 was deliberately oblique and far less
explicit than material previously deemed acceptable by the
Commission.8 In addition, Entercom maintains that the
Commission's indecency definition is unconstitutionally
vague and overbroad.9 Finally, Entercom claims that,
because Station KRXQ(FM) generally garners relatively high
ratings in the Sacramento, California, market, the
sensitivities of a single complainant do not reflect the
contemporary standards of the Sacramento listening
community.10
III. DISCUSSION
5. The Federal Communications Commission is
authorized to license radio and television broadcast
stations and is responsible for enforcing the Commission's
rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in
overseeing program content is very limited. The First
Amendment to the United States Constitution and Section 326
of the Act prohibit the Commission from censoring program
material and from interfering with broadcasters' freedom of
expression.11 The Commission does, however, have the
authority to enforce statutory and regulatory provisions
restricting indecency and obscenity. Specifically, it is a
violation of federal law to broadcast obscene or indecent
programming. Title 18 of the United States Code, Section
1464, prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.''12 In
addition, consistent with a subsequent statute and court
case,13 section 73.3999 of the Commission's rules provides
that radio and television stations shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.14
6. As an initial matter, we find that both segments
that are the subject of this NAL were indeed broadcast over
Station KRXQ(FM) during the restricted time period.
Entercom does not dispute that Station KRXQ(FM) broadcast
the RA&D Show on the dates and at the time periods in
question. Entercom claims that it cannot determine with
absolute certainty that Station KRXQ(FM) broadcast the
specific material contained in Segment 1 because it did not
retain a recording or transcript of that program.15 Based
upon the evidence before us, including Entercom's failure to
refute the complainant's allegations, we find that Station
KRXQ(FM) broadcast the material contained in Segment 1, as
alleged.16 We further conclude that Station KRXQ(FM)
broadcast the material contained in Segment 2 during the
restricted hours of the day. Entercom acknowledges as much,
although it states that the material contained in Segment 2
was broadcast on January 23, 2003, not on January 17, 2003,
as alleged.17 We will accept Entercom's date as that of the
broadcast.
7. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.18 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
material, as well the Commission's interpretation and
implementation of the governing statute.19 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.20
8. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured
by contemporary community standards for the broadcast
medium.21
Indecency findings involve at least two
fundamental determinations. First, the material
alleged to be indecent must fall within the
subject matter scope of our indecency definition -
- that is, the material must describe or depict
sexual or excretory organs or activities. Second,
the broadcast must be patently offensive as
measured by contemporary community standards for
the broadcast medium.22
9. Turning to the instant case, we begin our analysis
with an examination of whether the material that was
broadcast, in context, depicts or describes sexual or
excretory organs or activities. We find that it does.
Listeners tuning into Station KRXQ(FM) at the times when the
two segments were broadcast were exposed to a monologue
involving contact of a sexual nature with a child; a
dialogue about various sexual activities, including methods
of engaging in sexual intercourse; and multiple references
to sexual organs. Accordingly, we conclude that each of the
segments at issue describes sexual or excretory organs or
activities, satisfying the first prong of our indecency
analysis.
10. Having satisfied the first prong, we now turn to
an analysis of whether the material in each of the three
segments subject to this NAL satisfies the second prong of
the Commission's two-part indecency analysis - that is,
whether the broadcasts were patently offensive as measured
by contemporary community standards for the broadcast
medium.23 In our assessment of whether broadcast material
is patently offensive, ``the full context in which the
material appeared is critically important.''24 Three
principal factors are significant to this contextual
analysis: (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.25 In examining these
three factors, we must weigh and balance them to determine
whether the broadcast material is patently offensive because
``[e]ach indecency case presents its own particular mix of
these, and possibly, other factors.''26 In particular
cases, the weight of one or two of the factors may outweigh
the others, either rendering the broadcast material patently
offensive and consequently indecent,27 or, alternatively,
removing the broadcast material from the realm of
indecency.28
11. We turn now to an analysis of these factors as
they relate to each segment to determine whether the
material that was broadcast, taken in context, is patently
offensive as measured by contemporary community standards
for the broadcast medium.
Segment 1: The September 13, 2002 segment
involved one of the program hosts playing the role
of a young boy describing how his father wanted to
take photographs of him in the nude and show the
youngster his erect penis. Although the segment
employed euphemisms (``Daddy's going to take me to
a restaurant `cause he wants to take pictures of
me in my birthday suit. Daddy's giving me a
submarine. He says he's giving me something long,
hard, and full of seaman.''), the sexual import of
the material is unmistakable. Although the
segment was relatively brief, there is no question
that its purpose was to shock and titillate, and
is similar to other patently offensive material
involving graphic references to sexual activity
with children, which were found to be indecent.29
Under these circumstances, we need not find that
the sexual references were repeated at length in
order to find that the material is patently
offensive. As noted in the Indecency Policy
Statement, broadcasting references to sexual
activities with children, even if relatively
fleeting, may be found indecent where, as here,
other factors contribute to a finding of patent
offensiveness.30
Segment 2: The January 23, 2003, segment involved
a graphic and detailed discussion of various
methods that men may employ to disgrace, degrade
and humiliate women before, during, and after
sexual intercourse. The discussion went on for a
considerable length of time about descriptions of
sexual or excretory organs and activities. The
discussion of each method, for which a descriptive
name was given, was interspersed with laughter as
well as expressions of repulsion. The discussion
was shocking for its depravity and clearly
intended as such.
Entercom maintains that the discussion was
``deliberately oblique'' and less explicit than
other material that the Commission has deemed
acceptable. We disagree. The discussion was not
oblique in any sense of the word. For example, at
one point, one of the hosts advises how a man may
``proceed to engage in the most violent and
forceful sex imaginable . . . calling her the most
obscene names you can come up with, and slapping
her.''31 At another point in the broadcast, the
host suggests that after intercourse, ``[y]ou put
your ass right over her face while she's sleeping
. . . and break wind.''32 Elsewhere, the host
describes for the listening audience, ``while
taking the girl from behind, the guy reaches
around, grabs her breasts as hard as he can . . .
and screams out another girl's name, then he holds
on for the wild bronco ride.''33 In yet another
part of the same broadcast, the host suggests
that, while having sex in a bathroom, ``you're
engaged in, um, `from behind action' . . . then
when ready, he sticks her head into a toilet,
which contains a recently deposited log cabin,
simultaneously flushing it . . . you hold her head
there.''34 The host also describes how ``[o]nce
again, you're taking her from behind . . . then
the man wraps his arms around her throat . . .
placing her, again without her permission, placing
her in the traditional ``sleeper'' wrestling hold
. . . . cutting off air to the carotid artery . .
. . He maintains the hold until she is unconscious
. . . reviving her with his own special form of
smelly salts [farting noise] on her nose.''35 This
discussion was unquestionably graphic, not
oblique.
We also reject Entercom's contention that this
material cannot be found indecent because there
are other cases referencing topics such as
masturbation, and anal and oral sex in which no
enforcement action was taken. In support of this
argument, Entercom cites, among other things, two
unpublished Enforcement Bureau staff decisions, in
which there were references to ``giving head''36
and ``finger banging your boyfriend.''37 However,
the material in Segment 2 is more graphic and
explicit than the language cited in those
decisions. Moreover, the use of the term ``finger
banging'' was brief and fleeting, which is not the
case with the material at issue here.38
We believe the material at issue in Segment 2 is
strikingly similar to material that the Commission
has previously found to be actionably indecent.
See Infinity Broadcasting Operations, Inc., 18 FCC
Rcd 6915 (2003). As we did in that Infinity
decision, we find the tone of the material in the
instant case to be extraordinarily vulgar,
extremely lewd, and profoundly unfit for broadcast
when children may be in the audience. For these
reasons, we find that the broadcast in Segment 2
was patently offensive as measured by contemporary
community standards for the broadcast medium.
12. Entercom has acknowledged that it broadcast the
RA&D Show between 6 a.m. and 10 p.m., a time frame relevant
to an indecency determination.39 Because there was a
reasonable risk that children may have been in the audience
when the material in each of the two segments was broadcast,
the material that was broadcast is legally actionable. By
broadcasting this material over Station KRXQ(FM), Entercom
apparently willfully and repeatedly violated the
prohibitions in the Act and the Commission's rules against
broadcast indecency.
13. We reject Entercom's claim that, because this
proceeding was precipitated by complaints from a lone
individual, and Station KRXQ(FM) generally enjoys high
ratings, the contemporary community standards of the
Sacramento, California, listening community must, as a
consequence, embrace the station's programming.40 Whether
particular material is actionably indecent does not turn on
whether the station that broadcast it (or the program)
happens to be popular in its particular market.41 Indeed,
the fact that Station KRXQ(FM) draws a significant number of
Sacramento area listeners serves to increase the likelihood
that more children were among those who may have heard the
indecent broadcasts.
14. Finally, there is no merit to Entercom's argument
that the Commission's indecency definition is
unconstitutionally vague and overbroad.42 The Commission
has rejected similar constitutional challenges to our
broadcast indecency standards, including constitutional
challenges based on Reno v. ACLU, a case which Entercom
cites and which invalidated an indecency standard for the
Internet.43 Moreover, the courts have rejected similar
claims that the broadcast of indecent material may not be
restricted for the protection of children.44
15. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
Section 1.80(a) of the Commission's rules, 47 C.F.R § 1.80,
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 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. 45 Based on the material before us, it appears that
Entercom willfully and repeatedly violated 18 U.S.C. § 1464
and Section 73.3999 of the Commission's rules, by airing
indecent programming over Station KRXQ(FM) on September 13,
2002, and January 23, 2003.
16. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $7,000 for the transmission of
indecent or obscene materials.46 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, 47 U.S.C. §
503(b)(2)(D), 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.''47 Based upon our thorough review of the
record, including the egregious nature of the misconduct and
Entercom's prior history of violations,48 we conclude that
an upward adjustment of the forfeiture amount to the
statutory maximum of $27,500 is warranted in this case for
each instance in which Entercom apparently violated 18
U.S.C. § 1464 and 47 C.F.R. § 73.3999.49 Thus, we find that
the appropriate forfeiture amount is $55,000 (2 x $27,500).
We take this opportunity to note that similar violations of
this nature by Entercom could well lead to more severe
enforcement action, including commencement of license
revocation proceedings.50
IV. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED, that the complaints
filed against Entercom Sacramento License, LLC, Licensee of
Station KRXQ(FM), Sacramento, California, dated September 9,
September 13, and October 5, 2002; and February 26, and
March 10, 2003, ARE GRANTED to the extent indicated herein.
18. IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of
the Commission's rules,51 that Entercom Sacramento License,
LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of Fifty-Five Thousand Dollars
($55,000) for willfully violating 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules.
19. IT IS FURTHER ORDERED, pursuant to Section 1.80
of the Commission's rules, that within thirty (30) days of
the release of this NAL, Entercom SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
20. Payment of the forfeiture may be made 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 SHALL INCLUDE the FCC Registration Number (FRN)
referenced above and also SHALL NOTE the NAL/Acct. No.
referenced above.
21. The response, if any, SHALL BE MAILED to William
H. Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington DC 20554, and
SHALL INCLUDE the NAL/Acct. No. referenced above.
22. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
23. Requests for payment of the full amount of the
forfeiture proposed in this NAL under an installment plan
SHALL BE SENT to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.52
24. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Investigations
and Hearings Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment C of this NAL.
This information will be used for tracking purposes only.
Your response or failure to respond to this question will
have no effect on your rights and responsibilities pursuant
to Section 503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment B, please contact OCBO at (202) 418-0990.
25. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent, by Certified Mail/Return Receipt Requested,
to Entercom's counsel, Brian M. Madden, Esq., Leventhal,
Senter & Lerman, PLLC, 2000 K Street, N.W., Suite 600,
Washington, DC 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary ATTACHMENT A
September 13, 2002
ARNIE [affecting the tone of a young boy]: ``Daddy's going
to take me to a restaurant `cause he wants to take pictures
of me in my birthday suit. Daddy's giving me a submarine.
He says he's giving me something long, hard, and full of
seaman.''
END OF SEGMENT
ATTACHMENT B
January 23, 2003
DAWN: Sweetheart.
ROB: So. And you might, you might have to invest some time
to get her to the point where you can then perform the Rose-
Creeper, which is, you begin the event by very seductively
brushing a long-stem rose all along her body . . .
DAWN: Oooh.
ROB: . . . you're telling her how beautiful she is, you're
caressing her, you're kissing her body, OK, and I mean it is
very romantic.
DAWN: And you got to picture a sweet little mousey girl.
ARNIE: Uh huh.
ROB: You get her in the mood for love-making, and then you
proceed to engage in the most violent and forceful sex
imaginable, while whipping her with the rose, calling her
the most obscene names you can come up with, and slapping
her. [thudding sound]
DAWN: Oh my God! That will ruin someone like that.
ROB: Or turn her into to a complete slut, well that would
be ruining her, yeah.
DAWN: Oh my God, that would so give her low self-esteem or
something.
ARNIE: [snicker] Um, I don't like the whipping with the
rose . . .
ROB: It's kind of dopey . . . [laughter]
ARNIE: Yeah, that's . . . bad.
ROB: . . . but a mousey girl would think that was really .
. . or a virgin or something like that.
DAWN: Come on. Yeah. No that
ARNIE: I don't like the whipping with the rose.
DAWN: Oh God! And the . . .
ARNIE: Everything else, though.
DAWN: . . . and the betrayal, she thinks this guy likes her
and they are going to make sweet passionate love and like .
. .
ROB: And he's calling her the worst thing.
DAWN: . . . and the whole time he was betraying her and
conning her.
ARNIE: And videotaping it for his friends to see.
ROB: Or they're in the closet watching. Who knows?
ARNIE: Um hum.
ROB: I mean, you can probably add to it by having them pop
out at the end.
ARNIE: Could you watch?
ROB: Oh yeah! Yeah.
ARNIE: Could you watch it with out laughing?
ROB: No.
ARNIE: Well, OK.
ROB: No.
ARNIE: I would bust up too hard in the closet, I would be
laughing so hard when he's . .
DAWN: [gasp] Arnie!
ARNIE: It would be funny.
ROB: Yeah.
ARNIE: It would be funny.
DAWN: I hope, you know what, I hope these girls have
brothers.
ROB: Um.
ARNIE: Oh yeah! You go girl.
ROB: One more of, you know, I'm sorry I'd . . .
ARNIE: Asshole.
ROB: I'd deemed these as the lighthearted ones, but Dawn
has certainly pointed out they're not that lighthearted, but
they certainly are compared to what I'm going to get to.
Last one of these is ``Resuscitation;'' it's simply called
``Resuscitation,'' this one's funny, come on.
DAWN: That's what you said about the first one.
ROB: OK, you wait for her to fall asleep, so this is
obviously a girl that you've already had sex with, right.
ARNIE: OK.
ROB: [laughter] Then you, [laughter] . . .
DAWN: Rob.
ROB: [laughter] . . . this is funny. You're going to find
this funny. You put your ass right over her face while
she's sleeping [farting noise] and break wind.
DAWN: [laughter] That is so wrong.
ROB: [laughter] I mean that one's OK.
DAWN: No, that's wrong. [laughter]
ARNIE: If she's a deep sleeper . . .
DAWN: [giggle]
ROB: Well apparently, if I understand the web sites
correctly, which no, I am not going to be giving those out
on the air because they're so disturbing, um, the trick to
getting more points is you have to do it and it wakes her
up.
DAWN: [gasp]
ROB: It has to be such a, . . .
DAWN: OK, that is degrading.
ROB: It is.
DAWN: You just gave yourself to this guy, and now he's
farting in your face.
ROB: Um. Yeah. That usually doesn't happen until after
you're married.
DAWN: Exactly. And at least married men do it under the
covers and then just, like, ``woo,'' and then fan the
sheets.
ARNIE: Oh, but the bad thing is [laughter] I'm thinking
about the poor guy who's done this and pushed too hard.
DAWN: [wailing]
ROB: Now I do want to point out, um, we're going to get to
one . . .
DAWN: Yes. I get it.
ROB: . . . like that, but there are numerous disgusting
things that are involved and unfortunately that bodily
function that I really have a problem with.
ARNIE: I understand. Yeah.
ROB: But, let's move on now toward, what I called this next
Section . . .
DAWN: [laughter] That's so mean.
ROB: . . . I have called this next Section ``Mainstream
Mean,'' so it's definitely mean, but it's not nearly as bad
as our last grouping.
ARNIE: OK.
ROB: We'll start with the ones we already told you about as
a preview this week, ``The Bronco.'' This is while taking
the girl from behind, the guy reaches around, grabs her
breasts as hard as he can . . .
DAWN: Ouch!
ROB: . . . and screams out another girl's name, then he
holds on for the wild bronco ride.
DAWN: Abuse and degrading.
ROB: And of course ``The Rodeo'' that we told you about,
which is just like that, only rather than calling out
another girl's name, he has six of his friends burst into
the room laughing, which still causes the ``bucking bronco''
effect.
DAWN: Yes, 'cause she's trying to get him off, because now
all the friends are in the room, which is, of course,
degrading.
ROB: Let's move on to some more rather disgusting,
``Mainstream Mean'' things that fraternity boys are doing to
get into their frats. There is ``The Kennebunkport
Surprise.'' While on the way down to the ``Y,'' the man
secretly fills his cheeks with New England clam chowder,
then, while screaming in disgust, he hurls it between her
legs.
DAWN: That's . . . Jesus.
ARNIE: [laughter] Where does he get the clam chowder?
ROB: You've got to have this set up ahead of time, and, you
know, where you can reach for something and really get it in
your mouth quick, and then you know you start with the ``Y''
and after a couple seconds. Arggh . . .
DAWN: That's childish.
ROB: Yes.
DAWN: That's childish.
ARNIE: Now see, that, to me, would ruin a woman.
DAWN: Yes. [laughter]
ROB: That would. You're really not going to enjoy ``The
New York Style Taco,'' which is just like what I just
described ``The Kennebunkport,'' but rather than use the
chowder, the man simply barfs between her legs.
ARNIE: [laughter]
DAWN: That girl is ruined forever. That is not, I'm
serious she, girls that have that done will never ever let
another man at the ``Y.''
ROB: You betcha.
ARNIE: And you know what? To other men, we would thank
this guy because then we don't have to do any work.
DAWN: Arnie, it shouldn't be work, you should love it.
ROB: I personally do love it and enjoy it but I understand.
ARNIE: I don't mind. I don't mind . . . I'm just looking
out for the guys out there who don't do it. [laughter]
DAWN: OK, another reason not to date Arnie.
ARNIE: Rob, if you're a guy, how do you induce yourself?
Is it the finger in the throat or the . . . ?
ROB: Um hm. Well, a guy like me with a gag reflex, all I
would have to do is, yeah, the finger down the throat, or if
I had a, like a spoon or something, . . . that you go if
you've been drinking it's that much easier. But you're
right; for some guys it would be tough and maybe they have
to go to ipecac, which is a ``vomitant.''
DAWN: Oh my God! The poor girls.
ROB: OK. One more in the ``Mainstream Mean'' Section and
then we will get to the worst. The ``Mainstream Mean''
final one is ``The Ram.'' Simply called ``The Ram,'' this
is while enjoying her from behind (I noticed a lot of these
things occur with that), now you're standing up from behind
this time.
ARNIE: OK.
ROB: Ah, he takes one of his hands and just starts ramming
her head against the wall [DAWN gasps] in rhythmic motion.
DAWN: Abuse.
ROB: Yeah, that's pretty heinous.
DAWN: That's pretty heinous.
ROB: No, they're all heinous. You've made that clear to me
and I agree with you. I agree with you and I'm doing this
in degree and I think that one gets, like, an 8.
DAWN: How are there this many men that want to commit -
want to be this abusive - to a woman?
ROB: 'Cause they're young and they've grown up in this
society where it's OK, and you know, they haven't learned
yet.
DAWN: What a pussy. What a freaking bastard if you do
something like to a woman. I'm serious. What kind of man
are you?
ARNIE: Now Rob, this is just ``Mainstream Mean.'' ?
ROB: That was the last one of ``Mainstream Mean,'' as we
move on to the absolute worst.
ARNIE: Does it say how hard?
DAWN: Arnie!
ARNIE: I'm just wondering.
DAWN: It doesn't matter, . . . [laughter]
ARNIE: It's a question.
DAWN: . . .she's not asking for it.
ROB: [laughter] And again you may disagree with me that
these are the worst, I just found them to be yesterday as I
was rewriting this for ``airable'' content. Now, we
already told you earlier in the week about a couple of
these: ``The Walrus,'' which involves wrapping up an oral
pleasuring session in the traditional [farting noise] way
and then holding her nose and pinching her lips together,
which causes an appearance strikingly similar to that of a
tusked walrus.
DAWN: That always feels good when you can't breathe.
ROB: Yeah. That's no good. And ``The Cold Lunch'' we told
you about . . .
ARNIE: My personal favorite one of all time.
ROB: . . .which involves her orally pleasuring her man and
he then vomits on her head, and I did find that to be worse
than ``The New York Style Taco'' for some reason.
ARNIE: Now.
ROB: On her head.
ARNIE: Do they have ``The Kennebunkport'' one of those?
ROB: Oh, where you use clam chowder?
ARNIE: Yeah, could you possibly use clam chowder in that?
ROB: Maybe.
DAWN: You know, I prefer clam chowder.
ROB: Yeah. Woof, that's disgusting. OK now, um, um, the
five new ones, and then we'll be done with this, it will be
posted on the web site. Um, we're going to start with ``The
Dirty Swirly.''
DAWN: Oh no.
ROB: Now, once again, you're engaged in, um, ``from behind
action'' . . .
ARNIE: Um hm.
ROB: . . . although it must be done in a bathroom. An
apartment bathroom, not a public one or whatever . . .
ARNIE: Um hum. OK.
ROB: . . . then when ready, he sticks her head into a
toilet, which contains a recently deposited log cabin,
simultaneously flushing it, and that's where you get the
``dirty swirly.'' But you know and . . .
DAWN: [gasps]
ROB: . . . you hold her head there.
DAWN: Oh my God!
ROB: I don't think there's supposed to be contact, as I
understand it, between her and the cabin, but you're . . .
DAWN: Oh right, they monitor it; they're real concerned
about that.
ARNIE: I've seen a Rocko film where that happened. I don't
know if there was anything in ``said toilet,'' but I have
seen the swirly while he's going to town.
ROB: If that's just a swirly until we can confirm the
presence of the cabin, which makes it ``The Dirty Swirly.''
ARNIE: I'll have to go back and watch that video.
ROB: And there is also the obvious middle-of-the-road
version called ``The Golden Swirly.''
ARNIE: Of course. Of course.
DAWN: Yes. Oh God. This is terrible.
ROB: ``The Fire Island.'' This is kind of like that, uh,
which one was it, that ``Resuscitation'' one. OK, she's
sleeping, but rather than simply passing gas in her face,
you, the man, manually pleasures himself, and then improves
her complexion at the end [farting noise], if you know what
I mean, while she's still sound asleep.
DAWN: While she's sleeping?
ROB: Yeah.
DAWN: Oh my God.
ROB: Alright, now we get to what I believe are the three
really, really, really bad ones. We're going to start with
``The Roddy Piper,'' which is an ode to Rowdy Roddy Piper.
ARNIE: Professional wrestler.
ROB: This is how this one works. Once again, you're taking
her from behind men, then the man wraps his arms around her
throat, [DAWN gasps] placing her, again without her
permission, placing her in the traditional ``sleeper''
wrestling hold, . . .
ARNIE: OK.
ROB: . . . cutting off air to the carotid artery.
DAWN: Oh my God!
ARNIE: While still going to town?
ROB: Yes.
ARNIE: OK.
ROB: He maintains the hold until she is unconscious . . .
DAWN: [gasps]
ROB: . . . and continues with his business . . .
DAWN: Oh my God.
ROB: . . . reviving her with his own special form of smelly
salts [farting noise] on her nose. So did you get all that?
ARNIE: Road trip.
ROB: Road trips and very popular at Spring Break. Those of
you that hear all these terrible stories about Spring Break,
here's one. Uh, because it also must be done on a beach,
that's why it's called ``The Sand Bag,'' which you will
understand in a minute. The man uses a fake name, makes up
an entire story about who he is, and talks her into sex, and
of course uses liquor. Picture Spring Break, a lot of women
are there expecting casual sex.
ARNIE: Exactly.
ROB: And then, just prior to beginning the proceedings, he,
without telling her, removes his condom intentionally . . .
DAWN: [gasps]
ROB: . . . when he finishes . . .
DAWN: Oh no.
ROB: . . .he grabs a fist full of sand, he throws it in her
face, and he runs away. She doesn't know who he is, where's
he's from, can't see, can't find him, and doesn't even know
still what he did, and if it ``takes.''
DAWN: Oh God.
ROB: Now how really . . .
ARNIE: Wow.
DAWN: Not only pregnancy, but diseases.
ROB: Um hm, and no trail.
ARNIE: And you're messing up somebody else's life.
DAWN: Yes.
ROB: A whole new life.
DAWN: Yes.
ARNIE: Yes.
ROB: And her and you know.
ARNIE: Yeah.
DAWN: Yes. Oh! Oh you know what? There needs to be
stings, you're right, I'm serious. Oh God I'd, I would just
love to be a cop for a day just to track down these
m-f'ers.
ROB: Now, the last one I saved for the last just because of
the disgusting factor. The last one is called ``The Chili
Dog.'' Now there were a lot of them like this, I just chose
this one.
ARNIE: OK.
ROB: This is ``The Chili Dog.'' This one begins . . .
you'll have to get your visual, with the man seated on the
girl's chest, while receiving the chug-a-lug-a-lug, OK.
That's a popular position, right?
ARNIE: Um hm.
ROB: Everybody with me on how this works?
ARNIE: Oh yes, yes, yeah.
ROB: And while that is occurring, he builds a log cabin
between her breasts.
DAWN: [gasps].
END OF SEGMENT
Attachment C
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
STATEMENT OF COMMISSIONER MICHAEL J. COPPS,
APPROVING IN PART, CONCURRING IN PART
Re: Entercom Sacramento License, LLC, Licensee of Station
KRXQ(FM), Sacramento CA, Notice of Apparent Liability
for Forfeiture
I agree that these broadcasts are indecent in violation
of the statute. Nonetheless, I concur in part because I
believe that the Commission could have assessed a fine that
goes beyond a cost of doing business by imposing a penalty
for multiple indecent utterances within at least one of
these programs. This case further highlights the need to
address indecency complaints more expeditiously. These
broadcasts occurred almost two years ago.
SEPARATE STATEMENT OF KEVIN J. MARTIN
APPROVING IN PART, CONCURRING IN PART
Re: Entercom Sacramento License, LLC, Licensee of Station
KRXQ(FM), Sacramento CA, Notice of Apparent Liability for
Forfeiture (September 22, 2004)
Consistent with my past statements, I believe we should
be fining broadcasters on a ``per utterance'' basis.53 In
this instance, we could have found several violations within
the broadcasts
at issue and therefore could have assessed a larger fine.
_________________________
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See Letter to Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, from Complainant,
dated September 9, 2002; Letter to Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau,
from Complainant, dated September 23, 2002; Letter to
Charles W. Kelley, Chief, Investigations and Hearings
Division, Enforcement Bureau, from Complainant, dated
October 5, 2002; Letter to Sandra Watson, Program Analyst,
Investigations and Hearings Division, Enforcement Bureau,
from Complainant, dated February 26, 2003; and E-mail to
Dana Leavitt, Assistant Chief, Investigations and Hearings
Division, Enforcement Bureau, from Complainant, dated March
10, 2003.
3 See Letter to Entercom Sacramento License, LLC, from
Maureen F. Del Duca, Chief, Investigations and Hearings
Division, Enforcement Bureau, dated August 21, 2003. A
transcript of each of the program segments is appended
hereto as Attachment A and B, respectively.
4 Letter to Dana E. Leavitt, Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, from Brian M.
Madden, Esq., dated October 17, 2003 (``Response''). See
also Letter to David Solomon, Chief, Enforcement Bureau,
from Brian M. Madden, Esq., dated October 17, 2003, wherein
Entercom requests confidential treatment of certain
documents attached to its Response. Because the instant NAL
does not rely on such attached materials, we do not herein
render a decision on the merits of Entercom's
confidentiality request. See also Letter to Dana E.
Leavitt, Esq., Assistant Chief, Investigations and Hearings
Division, from Brian M. Madden, Esq., dated November 18,
2003.
5 Response at 3-4.
6 Id. at 4
7 Id. at 5.
8 Id. at 8-11.
9 Id. at note 8.
10 Id. at 12.
11 See 47 U.S.C. § 326.
12 18 U.S.C. § 1464.
13 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992); Action for Children's Television
v. FCC, 58 F.3d 654 (D.C. Cir 1995), cert. denied, 516 U.S.
1043 (1996) (``Act III'').
14 47 C.F.R. § 73.3999.
15 Response at 3-4.
16 Infinity Broadcasting Corp. of Los Angeles (KROQ-FM),
Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶ 17
(2002) (``a licensee may not avoid liability `by claiming
that he doesn't know what did or did not go out over his
station.'").
17 Response at 6.
18 U.S. Const., amend. I; Action for Children's Television
v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
19 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.'' FCC v. Pacifica Foundation, 438 U.S. 726
(1978). See also ACT I, 852 F.2d at 1339; Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir.
1991), cert. denied, 503 U.S. 914 (1992) (``ACT II''); ACT
III, 58 F.3d 654.
20 ACT I, 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 may say and hear.''); id.,
852 F.2d at 1340, n.14 (``the potential chilling effect of
the FCC's general definition of indecency will be tempered
by the Commission's restrained enforcement policy.'').
21 Infinity Broadcasting Corporation of Pennsylvania,
Memorandum Opinion and Order, 2 FCC Rcd 2705 (1987)
(subsequent history omitted) (citing Pacifica Foundation,
Memorandum Opinion and Order, 56 FCC 2d 94, 98 (1975), aff'd
sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).
22 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. §1464 and Enforcement Policies
Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd
7999, 8002, ¶¶ 7-8 (2001) (``Indecency Policy Statement'')
(emphasis in original).
23 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and, with
respect to Commission decisions, does not encompass any
particular geographic area. See WPBN/WTOM License
Subsidiary, Inc., Memorandum Opinion and Order, 15 FCC Rcd
1838, 1841 (2000).
24 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9
(emphasis in original).
25 Id., 16 FCC Rcd at 8002-15, ¶¶ 8-23.
26 Id., 16 FCC Rcd at 8003, ¶ 10.
27 Id., 16 FCC Rcd at 8009, ¶ 19 (citing Tempe Radio, Inc
(KUPD-FM), Notice of Apparent Liability, 12 FCC Rcd 21828
(Mass Media Bur. 1997) (forfeiture paid)) (extremely graphic
or explicit nature of references to sex with children
outweighed the fleeting nature of the references); EZ New
Orleans, Inc. (WEZB(FM)), Notice of Apparent Liability, 12
FCC Rcd 4147 (Mass Media Bur. 1997) (forfeiture paid)
(same)).
28 Id., 16 FCC Rcd at 8010, ¶ 20 (``the manner and purpose
of a presentation may well preclude an indecency
determination even though other factors, such as
explicitness, might weigh in favor of an indecency
finding'').
29 Citicasters Co.(KSJO(FM)), Notice of Apparent Liability,
15 FCC Rcd 19091 (Enf. Bur. 2000) (``joke'' that includes
patently offensive references to incest and sex with
children); Tempe Radio, 12 FCC Rcd 21828 (patently offensive
language referring to sexual activity with a child); EZ New
Orleans, Inc., 12 FCC Rcd 4147 (patently offensive
references to incest and sexual activity with an infant).
30 Indecency Policy Statement, 16 FCC Rcd at 8009.
31 Attachment B, infra, at 12.
32 Attachment B, infra, at 14.
33 Attachment B, infra, at 15.
34 Attachment B, infra, at 18.
35 Attachment B, infra, at 19.
36 Response at 9, citing Letter from Charles W. Kelley,
Chief, Investigations and Hearings Division, to Charles
Giacona, dated April 22, 2002, EB-01-IH-0407/WK.
37 Response at 11, citing Letter from Charles W. Kelley,
Chief, Investigations and Hearings Division, to Mindy
Pierce, dated February 12, 2002, EB-01-IH-0331/GDJ.
38 Id. at 4-5. Entercom also cites various unpublished
materials in which the former Mass Media Bureau, predecessor
to the current Media Bureau of the Commission, found that
certain material was not actionably indecent. Response at
11. Published decisions, including those cited in the
Commission's Indecency Policy Statement, provide guidance
indicating that material such as that contained in this case
is indecent. Thus, even to the extent Entercom was aware of
these unpublished decisions, we do not believe any reliance
on them was reasonable.
39 47 C.F.R. § 73.3999.
40 Response at 11-12.
41 See WPBN/WTOM, 15 FCC Rcd at 184.
42 Response at note 8.
43 See, e.g., Infinity Broadcasting Corporation of Los
Angeles (KROQ-FM), Memorandum Opinion and Order, 17 FCC Rcd
9892 (2002); WQAM License Limited Partnership, Forfeiture
Order, 15 FCC Rcd 2518 (2000)(noting that the Court
indicated that broadcast indecency regulations were
justified based on significant differences between the
Internet and the broadcast medium and between the standard
in the statute at issue and the Commission's broadcast
indecency standard).
44 Entercom cites language from Ashcroft v. Free Speech
Coalition, 122 S.Ct. 1389 (2002), a case invalidating
provisions of the Child Pornography Prevention Act of 1996
(``CPPA''), which criminalized non-obscene ``virtual'' child
pornography. The CPPA extended the federal prohibition
against child pornography to sexually explicit images that
appeared to depict minors but were produced without using
any real children. In the text cited, the Court
distinguished provisions of the CPPA related to ``virtual''
child pornography from constitutionally valid statutory
provisions banning actual child pornography. Protecting
children from exposure to indecent material is a compelling
governmental interest and courts have not questioned or
expected proof on the issue of harm. See Sable
Communications, 492 U.S. at 126-27. To withstand
constitutional scrutiny, however, government regulations
aimed at promoting this compelling interest must be narrowly
drawn so as not to unnecessarily interfere with First
Amendment freedoms. The U.S. Court of Appeals for the D.C.
Circuit has concluded that a 10 p.m. to 6 a.m. ``safe
harbor'' period, during which indecent speech may be legally
broadcast, is justified as a properly tailored means of
vindicating the government's compelling interest in the
welfare of children. See ACT III, 58 F.3d at 667. See also
FCC v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978).
45 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
46 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Memorandum Opinion and Order, 12 FCC
Rcd 17087, 17113 (1997), recon. denied 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement''); 47 C.F.R. § 1.80(b).
47 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
48 On September 27, 2002, the Commission released a
Forfeiture Order in the amount of $12,000 against Entercom
Seattle License, LLC, licensee of Station KNDD(FM), Seattle,
Washington, for broadcasting indecent material, in willful
and repeated violation of 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999. See Entercom Seattle License, LLC, Order of
Forfeiture, 17 FCC Rcd 18347 (Enf. Bur. 2002) (application
for review pending). Entercom and Entercom Seattle License,
LLC, are both wholly-owned subsidiaries of Entercom
Communications Corp.
49 Id.; 47 C.F.R. § 1.80. The Commission amended its rules
to increase the maximum penalties to account for inflation
since the last adjustment of the penalty rates. The revised
amounts apply to violations that occur or continue after
November 13, 2000. See Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 15 FCC Rcd 18221 (2000).
50 See 47 U.S.C. § 312(a). On April 3, 2003, we placed
broadcast licensees on clear notice that we would consider
commencing license revocation proceedings in egregious cases
involving the broadcast of indecent material. See Infinity
Broadcasting Operations, Inc., Notice of Apparent Liability,
18 FCC Rcd 6915 (2003). But for the fact that the material
here was broadcast prior to April 3, 2003, Entercom might
well be facing an adjudicatory hearing to determine whether
its license for Station KRXQ(FM) should be revoked, rather
than the instant proposed forfeiture.
51 47 C.F.R. § 1.80.
52 See 47 C.F.R. § 1.1914.
53 See, e.g., Separate Statement of Commissioner
Martin, Infinity Broadcasting Operations, Inc., Licensee of
Station WKRK-FM, Detroit, Michigan, Notice of Apparent
Liability, 18 FCC Rcd. 6915, 6939 (2003) (urging the
Commission to fine violators ``per utterance'').