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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. з 1464 and Section 73.3999 of the Commission's rules,
47 C.F.R. з 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.''

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. зз 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. з 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. з 1464 by
airing indecent programming.

7. Section 503(b) of the Act, 47 U.S.C. з 503(b), and
Section 1.80(a) of the Commission's rules, 47 C.F.R. з 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).

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. з 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. з 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 12th 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 BureauRadio 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...''

* *

_________________________

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. з 0.111, 0.311 and 1.80.