******************************************************** 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of COMMUNICAST CONSULTANTS, INC. Licensee of Station KRXK(AM) Rexburg, Idaho ) ) ) Control No. CN9900724 ) NAL/Acct. No. X32080018 ) Facility No. 12664 ) JJS ) ) FORFEITURE ORDER Adopted: October 11, 2000 Released: October 12, 2000 By the Chief, Enforcement Bureau: I.Introduction 1. In this forfeiture order, we impose a seven thousand dollar ($7,000) forfeiture against Communicast Consultants, Inc. ("CCI"), licensee of KRXK(AM), Rexburg, Idaho. We find that CCI violated 18 U.S.C. 1464 and Section 73.3999 of the Commission's rules, 47 C.F.R.  73.3999, by broadcasting indecent material. 2. On July 14, 2000, the Chief, Enforcement Bureau, issued a Notice of Apparent Liability for Forfeiture in the amount of seven thousand dollars ($7,000) against CCI. Communicast Consultants, Inc., DA 00-1567 (released July 14, 2000) ("NAL"). CCI filed its response on September 7, 2000. III.Background 4. The Commission received a complaint alleging that CCI broadcast indecent material during a Spanish- language call-in talk show on or about January 12, 1999, between 8 a.m. and 10 a.m. A transcript of the broadcast in question was attached to the NAL. We issued letters of inquiry, asking CCI to comment on the complaint. CCI responded to our inquiries, asserting that the material is not indecent and asking that it be allowed to provide a certified English translation of the Spanish program if the Commission decided to pursue this matter further. On May 23, 2000, we asked CCI to provide a certified translation. In a phone conversation with Commission staff on June 14, 2000, counsel authorized to speak on behalf of CCI stated that CCI accepts the transcript provided in the letter of inquiry and would not be filing a certified translation. V.Discussion 6. In arguing in its response that the material was not indecent, CCI claims that the broadcast used "correct anatomical terms" that would be heard in any clinical or instructional course on human sexuality. CCI asserts that the material was not patently offensive and that the NAL failed to consider adequately the context of the conversation. Additionally, CCI argues that the NAL is defective because it did not make any findings concerning the contemporary community standards of the Spanish-speaking community in the Rexburg, Idaho, area. According to CCI, nearly all children in the Rexburg area would have been in school when the program was broadcast and the Commission has not demonstrated that any children heard the broadcast. CCI claims that even if the program were indecent, there was no willful violation because the programming was received by satellite and the station had no way of knowing what would be broadcast. It also asserts that approximately thirty other stations broadcast the program in question and that the Commission has engaged in "selective enforcement" by taking action only against KRXK(AM). Finally, CCI argues that a $7,000 forfeiture exceeds the profits KRXK(AM) has earned during the period CCI has been the licensee and that such a forfeiture would be "economically crippling." (Emphasis in Original). 7. First, we reject CCI's argument that the material was not indecent. The Commission defines broadcast 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), aff'd 3 FCC Rcd 930 (1987)(subsequent history omitted)(citing FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). CCI does not dispute that the material discusses sexual activities, but it denies that the material is "patently offensive." While the use of certain terms does not automatically make material indecent, we believe the graphic sexual references, as well as the announcer's comments, laughter, and jokes, show that the material was offered in a pandering, titillating manner, rendering the material "patently offensive." 8. CCI's argument that the Commission must have evidence about the community standards of the Spanish-speaking community in the Rexburg area in order to find an indecency violation is incorrect. The Commission's interpretation of the term "contemporary community standards" is consistent with the definition set forth in the Supreme Court's decision in Hamling v. United States, 418 U.S. 87 (1974), reh'g denied, 419 U.S. 885 (1974). In that case, which involved obscenity, "the Court explained that the purpose of 'contemporary community standards' was to ensure that material is judged neither on the basis of a decisionmaker's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." Infinity Broadcasting Corporation of Pennsylvania (WYSP(FM)), 3 FCC Rcd 930, 933 (1987) (subsequent history omitted), citing 418 U.S. at 107. The Court stated that decisionmakers need not use any precise geographic area in evaluating material. 3 FCC Rcd at 933, citing 418 U.S. at 104-05. Consistent with Hamling, the Commission's evaluation of allegedly indecent material is "not one based on a local standard, but one based on a broader standard for broadcasting generally." 3 FCC Rcd at 933. We also reject CCI's suggestion that we should not take enforcement action because most children would be in school during the time of the broadcast. Congress has directed the Commission to enforce the ban on indecent broadcasts during the morning time period at issue in this case, and the United States Court of Appeals for the District of Columbia Circuit has upheld that directive. See Action for Children's Television v. FCC, 852 F.2d 1332, 1341 (D.C. Cir. 1988). 9. CCI may not correctly contend that the violation was not willful because the program was a syndicated program received by satellite and the station had no way of knowing what would be broadcast. 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. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). In this case, CCI knew it was broadcasting the program. The Commission has emphasized "that the licensee is ultimately responsible for all programming aired on its station, regardless of its source." Revision of Radio Rules and Policies, 7 FCC Rcd 6387, 6401 (1992). Moreover, CCI could have used a delay mechanism to monitor the broadcast to ensure that inappropriate material was not aired. Since CCI knowingly broadcast the program, its actions were willful within the meaning of the statute. 10. We also reject the argument that our decision to issue an NAL represents improper "selective enforcement." As is the case with virtually all of our indecency cases, we initiated this investigation in response to a complaint filed against KRXK(AM). If we had received complaints against other stations that had broadcast the same program, we would have similarly initiated an investigation and taken appropriate enforcement action. Congress has directed us to enforce the restrictions on broadcast indecency, and CCI has not shown that it was treated differently than any other station against which a complaint was filed. 11. Finally, we cannot accept CCI's claim that a $7,000 forfeiture would be "economically crippling" to station operations. CCI did not provide any financial documentation to support that claim. Moreover, after the NAL was released, CCI received authorization to assign the license for KRXK(AM) to Pacific Empire Holdings Corp. See File No. BAL-20000403ABH, granted July 25, 2000. CCI has not shown that it would be unable to pay the forfeiture from the proceeds of the sale. Moreover, once CCI closes on the sale, the forfeiture will no longer have an impact upon station operations. After reviewing all of the factors required by Section 503(b)(2)(D) of the Act, we believe a $7,000 forfeiture is appropriate in this case. XII.Ordering Clauses 13. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's rules, Communicast Consultants, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of seven thousand dollars ($7,000), for its willful violation of 18 U.S.C.  1464 and Section 73.3999 of the Commission's rules, 47 C.F.R.  73.3999. 14. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's rules 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, 47 U.S.C.  504(a). Payment may be made 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. See 47 C.F.R.  1.1914. 15. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by Certified Mail/Return Receipt Requested, to Communicast Consultants, Inc. 341 West 1500 North, Rexburg, Idaho 83440. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau