*Pages 1--4 from Microsoft Word - 18793.doc* Federal Communications Commission DA 00- 2186 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) CITICASTERS CO. ) Case No. EB- 00- IH- 0064 ) NAL/ Acct. No. X32080030 Licensee of Station KSJO( FM), ) Facility #4117 San Jose, California ) JJS ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: September 25, 2000 Released: September 26, 2000 By the Chief, Enforcement Bureau: I. Introduction 1. In this Notice of Apparent Liability for Forfeiture, we find Citicasters Co. (“ Citicasters”), licensee of Station KSJO( FM), San Jose, California, apparently liable for a seven thousand dollar ($ 7,000) forfeiture for an apparent violation of 18 U. S. C. § 1464 and Section 73.3999 of the Commission’s rules, 47 C. F. R. § 73.3999, by broadcasting indecent material. II. Background 2. The Commission received a complaint concerning a broadcast during the “Lamont & Tonelli Show” on February 9, 2000 at approximately 8: 15 a. m. According to the complainant, a guest on the program provided in great detail instructions on how to perform fellatio. A transcript of portions of the program, as recalled by the complainant, is attached. 3. By letter dated June 8, 2000, we requested Citicasters to comment on the complaint. Citicasters filed its response on July 7, 2000. In its response, Citicasters states that it “cannot confirm” that the material aired as described in the complaint. Citicasters states, however, that “on February 9, 2000, a guest on their show did discuss, in clinical terms, the proper technique for performing fellatio.” On July 12, 2000, we requested further information, and Citicasters responded on August 10, 2000. In the further response, Citicasters declared that on February 9, 2000, on air personalities Tod Fryfogle (also known as “Lamont Hollywood”) and Paul Tonelli had on as a guest Dr. Natasha Terry (a/ k/ a Janina Valdez). Citicasters states that Dr. Terry is a nationally recognized sex therapist and certified clinical sexologist, and that she was qualified to conduct a clinical discussion of human sexuality. Citicasters also states that Dr. Terry has been a guest on the Lamont & Tonellli show more than a dozen times over 11 years. Messrs. Fryfogle and Tonelli do not specifically recall what they discussed with Dr. Terry prior to interviewing her on February 9, but they “are confident that we emphasized the importance of keeping all on- air discussions of sexual matters clinical.” 1 Federal Communications Commission DA 00- 2186 2 III. Discussion 4. Section 503( b)( 1)( D) of the Act provides in pertinent part: Any person who is determined by the Commission, in accordance with paragraph (3) or (4) of this subsection, to have--- violated any provision of section 1304, 1343, or 1464 of title 18, United States Code; shall be liable to the United States for a forfeiture penalty. Pursuant to 47 U. S. C. §§ 312( a)( 6) and 503( b)( 1)( D), the Commission has statutory authority to take appropriate administrative action when licensees broadcast material in violation of 18 U. S. C. § 1464, which provides criminal penalties for anyone who “utters any obscene, indecent or profane language by means of radio communication.” 5. The Commission has defined 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) (citing Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff’d sub nom. FCC v. Pacifica Foundation, 438 U. S. 726 (1978). The United States Court of Appeals for the District of Columbia Circuit has upheld the Commission's authority to restrict the broadcast of indecent material at times when there is a reasonable risk that children may be in the audience. Action for Children’s Television v. FCC, 852 F. 2d 1332 (D. C. Cir. 1988). The court subsequently concluded that a 10: 00 p. m. to 6: 00 a. m. "safe harbor" was justified as a properly tailored means of vindicating the government's compelling interest in the welfare of children. Action for Children’s Television v. FCC, 58 F. 3d 654 (D. C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996). 6. We reject Citicasters’ contention that the discussion was not indecent because the discussion was clinical. While Dr. Terry may have been qualified to lead a clinical discussion of sexual techniques, the disc jockeys’ comments on her material show that the material was offered in a pandering and titillating manner. Specifically, the disc jockeys’ invitation to have Dr. Terry use a prop on a radio program, and their laughter and statements (such as “oh yeah, baby”) while she conducted that demonstration, show that the material was intended to be pandering and titillating, as opposed to a clinical discussion of sex. We therefore find that this material appears to be indecent because it contains language that describes sexual and/ or excretory activities or organs in patently offensive terms. Moreover, while the complainant did not provide us with an exact transcript of the broadcast, we find that she has provided us with sufficient context to make the determination that the broadcast was indecent. Where “the goals of this internal Commission procedure can be achieved by other means, we will not be diverted from pursuing an otherwise legitimate complaint by the lack of direct, off- air recordings or transcripts.” Nationwide Communications, Inc. (KLUC- FM), 6 FCC Rcd 3695 (MMB 1990). Because the material aired at around 8: 15 a. m., when there was a reasonable risk that children may have been in the audience, it is legally actionable. Thus, it appears that on February 9, 2000, Station KSJO( FM) violated 18 U. S. C. § 1464 by airing indecent programming. 7. 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( a), 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. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 2 Federal Communications Commission DA 00- 2186 3 8. The Commission’s Forfeiture Policy Statement sets a base forfeiture amount of $7,000 for transmission of indecent/ obscene materials. 1 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.” See 12 FCC Rcd at 17110. After reviewing all of the circumstances, we believe a $7,000 forfeiture is appropriate in this case. IV. Ordering Clauses 9. ACCORDINGLY, IT IS ORDERED pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, and 1.80 of the Commission’s rules, 2 that Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand dollars ($ 7,000) for willfully violating 18 U. S. C. § 1464 and Section 73.3999 of the Commission’s rules. 10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that within thirty days of the release of this Notice, Citicasters SHALL PAY to the United States the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. 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 should note the NAL/ Acct. No. referenced above. 12. The response, if any, must be mailed to Charles W. Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12 th Street, S. W, Room 3- B443, Washington DC 20554 and MUST INCLUDE the file number listed above. 13. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by Certified Mail/ Return Receipt Requested, to Citicasters’ counsel, John M. Burgett, Esq., Wiley, Rein & Fielding, 1776 K Street, N. W., Washington, DC 20006. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 1 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Commission’s Rules, 12 FCC Rcd 17087, 17113 (1997) recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture Policy Statement). 2 47 C. F. R. § 0.111, 0.311 and 1. 80. 3 Federal Communications Commission DA 00- 2186 4 Radio Station: KSJO- FM, San Jose, CA Date/ Time Broadcast: February 9, 2000, at approximately 8: 15 a. m. Material Broadcast: Lamont & Tonelli Show EB- 00- IH- 0064 ksjo1 Complainant states: Specifically, the subject of today’s broadcast was a guest (a woman) who was giving in great detail the steps in which to perform fellatio. The station’s on air personalities – “Lamont and Tonelli” – commonly refer to this sexual act as ‘getting a hummer. ’ Although I do not have a tape or word for word transcription of the program, the portion of the show, which I did hear, went something like this: (woman) “…. she should go up and down the shaft about five times, licking and sucking and on the fifth swirl her tongue around the head before going back down…..” (on air personalities) “Show us how its done” (evidently the guest had some sort of a prop). (woman) “Well, if this was a real penis, it would have a **** ridge, I would like (sic) around the ridge like this… (on air personalities) [laughter, comments such as ‘oh yeah, baby’] (woman) “To do this right, you have to pay attention to the *****, its very sensitive. If you’re a guy and your (sic) looking down at your penis, its on the underside of the penis, there’s a slight indentation, a groove that’s really sensitive, just lick along the underside of that…” * * 4