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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-00-IH-0261
Citicasters Co. ) NAL/Acct. No.
200132080027
) Facility ID #18114
Licensee of Station KEGL(FM), )
Fort Worth, Texas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 30, 2001 Released: April 3,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Citicasters Co. (``Citicasters''),
licensee of Station KEGL(FM), Fort Worth, Texas, has
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully and repeatedly broadcasting indecent
language. Based on our review of the facts and
circumstances in this case, we conclude that Citicasters is
apparently liable for a forfeiture in the amount of fourteen
thousand dollars ($14,000).
II. BACKGROUND
2. The Commission received a complaint dated August 6,
2000, concerning broadcasts that aired on KEGL on May 30,
May 31, August 1 and August 3, 2000. The complaint included
transcripts and pictures taken from the station's website.
Review of the complaint revealed that the May 30 broadcast
occurred at 11 p.m., while the August 1 broadcast did not
appear to raise a prima facie question of actionable
indecency. However, because the May 31 and August 3
broadcasts contained apparently indecent material and aired
between 7 p.m. and 10 p.m., we issued a letter of inquiry to
the licensee.
3. In its response, Citicasters asserts that it cannot
verify whether the material aired. However, the licensee
does acknowledge that it admonished ``Kramer and Twitch,''
the hosts of the programs in question, following one of
their shows in late May or early June because management
believed that certain material may have been inappropriate
for the station's audience. With respect to the August 3
broadcast, Citicasters argues that the material allegedly
aired was not indecent. Citicasters submits that, at worst,
the material includes a ``few scattered and vague references
of a sexual nature, ... [which] are neither explicitly
graphic nor pandering.'' Citicasters claims that it has a
formal policy prohibiting the broadcast of indecent
material; that KEGL's management routinely advises the
station's on-air staff of the policy; and that it
``vigilantly'' monitors the station's broadcasts for
compliance. Citicasters also notes that, beginning in
December 2000, KEGL began airing the ``Kramer and Twitch''
program on a 12-hour delayed basis. Citicasters explains
that, currently, the program is taped in San Jose,
California, and then reviewed and edited by KEGL personnel
prior to being broadcast by the station. In addition, KEGL
regularly airs a message both before and after the ``Kramer
and Twitch'' show, which notifies listeners that the program
may contain material ``more suitable for adults.''
III. DISCUSSION
4. Section 503(b)(1) of the Communications Act (the
``Act''), 47 U.S.C. § 503(b)(1), provides in pertinent part:
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection to have ---
...
(D) 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.
18 U.S.C. § 1464 provides criminal penalties for anyone who
``utters any obscene, indecent or profane language by means
of radio communication.'' As explained below, we believe
that language broadcast during the May 31 and August 3
programs of ``Kramer and Twitch'' was indecent and that the
licensee's broadcast of that material was willful.
5. The Commission has defined indecent speech as
language 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) (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). 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.
Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.
Cir. 1988). Current law holds that such times begin at 6
a.m. and conclude at 10 p.m. Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S.Ct. 701 (1996). Thus, to be actionably
indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and
before 10 p.m. See 47 C.F.R. § 73.3999.
6. After carefully considering the record before us,
it appears that Citicasters has willfully and repeatedly
violated our indecency rule. Citicasters does not deny that
it broadcast the language in question before 10 p.m. The
May 31 broadcast contains dialogue between the hosts and a
teenage female caller, wherein, among other things, the
hosts and the caller discuss bisexuality and masturbation,
and the hosts attempt to have the caller masturbate during
the course of the conversation. The tone of the
conversation is pandering and titillating in that the hosts
persistently inquire about the caller's frequency and
methods of masturbation, and they assert that the caller's
father masturbates despite his apparent disapproval of her
doing so. As for the August 3 broadcast, we disagree with
Citicasters' contention that indecent language was not
aired. That broadcast features a conversation between the
hosts and an adult film actor and actress. Among other
things, they discuss whether the actor's girl friend is
bisexual, whether the actress enjoys anal sex, and whether
the actress will perform a sexual act on one of the hosts
whose penis is ``uncut.'' Once again, the tone of the
conversation is pandering and titillating. It appears that
both broadcasts were indecent in that they contain patently
offensive descriptions of various sexual activities.1 The
licensee's stated policy against the broadcast of indecent
material apparently had no impact on the airing of the cited
material, and its current procedures for editing ``Kramer
and Twitch'' and advising audiences about its content have
no bearing on whether a forfeiture should be imposed. See
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
7. Section 503(b) of the Act and 47 C.F.R. § 1.80 both
state that any person who willfully or repeatedly fails to
comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of 47 U.S.C.
§ 503(b), the term ``willful'' means that the violator knew
that it was taking the action in question, irrespective of
any intent to violate the Commission's rules.2 As explained
above, Citicasters knew that it was broadcasting ``Kramer
and Twitch'' and each of the cited segments. In assessing a
forfeiture, we take into account 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.3
8. The Commission's Forfeiture Guidelines set a base
forfeiture amount of $7,000 for transmission of
indecent/obscene materials.4 After considering all the
facts and circumstances, we believe the base forfeiture
amount is the appropriate sanction for each of the two
violations described above and that neither an upward nor
downward adjustment should be made.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to 47
U.S.C. § 503(b), and 47 C.F.R. §§ 0.111, 0.311 and 1.80,
Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of fourteen thousand dollars
($14,000) for willfully and repeatedly violating 18 U.S.C. §
1464 and 47 C.F.R. § 73.3999.
10. IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R.
§ 1.80, within thirty days of this NOTICE OF APPARENT
LIABILITY, Citicasters Co. SHALL PAY 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 the
Charles W. Kelley, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Room 3-B443, Washington,
D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced
above.
13. 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.
14. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.5
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to Citicasters Co., c/o Kenneth E. Wyker,
General Counsel, Clear Channel Communications, Inc., 200
East Basse Road, San Antonio, Texas 78209-8328; with a copy
to Elizabeth E. Goldin, Esq., Wiley, Rein & Fielding, 1776 K
Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT
Radio Station: KEGL(FM), Fort Worth, Texas
Date/Time Broadcast: (1) May 31, 2000 at 9 p.m.; (2)
August 3, 2000 between 7:45 p.m. - 9:15 p.m.
Material Broadcast: (1) Telephone conversation; (2)
Interview and commentary
(1) May 31, 2000 (9 p.m.)
MV: Male Voice(s) (Hosts)
FV: Caller
Boy: Caller's brother
MV: So you say you're 17 and your parents won't let you
listen to us? Huh?
FV: Yeah, because my dad is like a bishop in my church, and
so he thinks you guys are evil.
MV: Are you really 17? What year were you born?
FV: 1983.
MV: I guess that's right. Well, 17, technically, is the
legal age of consent. So you really don't need his
permission to listen to a radio show.
FV: True. But I still live under his house and so he could
kick me out.
MV: What does he say about the show that he doesn't like?
FV: He says it will put evil thoughts in my head and stuff.
MV: What kind of evil thoughts do we put in your head?
Have you been thinking about sex?
FV: Well, you guys had that girl on who like wanted to get
off on another girl.
MV: Did that turn you on? Any of that?
FV: Yeah.
MV: Do you think you're bi-sexual in any way?
FV: Maybe. And that's why he doesn't like it.
MV: Are you a virgin? Yes?
FV: Yeah.
MV: So your dad blames us. And you may be bi-sexual,
right?
FV: He doesn't say that, but he says that the whole pre-
marital sex thing is evil.
MV: Of course. Of course, he thinks that. You should be
able to make your own decisions. You're 17 years old, and
if you wanted to have sex with one of us you could do that
legally. We could have sex with you. And I think we should
just because of her father.
How many times a week do you masturbate? How many
times?
FV: Probably about four or five.
MV: How do you do it?
FV: It's private.
MV: Do you put your finger in or do you move it around? Do
you use a vibrator? Where do you masturbate? In the
shower?
FV: In my room, usually.
MV: How do you do it?
FV: I get on my back and start touching myself.
MV: How? It's okay. Really, you can tell us. Do you ever
touch yourself through your panties? You know, just on the
outside to get yourself revved up. Describe the whole
thing. I want to hear it. Just tell me little details.
First of all, tell me, do you shave?
FV: Yes, but that's because my cousin taught me how to.
MV: Who taught you how? Is it a female or a guy?
FV: Well, she told me you kind'a have to because when guys
are down there they don't want to ... so.
MV: So it's shaved and bald. What do you do when you
masturbate? Ah, this is turning me so on. Who do you think
about?
FV: I do it like under the water thing.
MV: In the bathtub? Do you do that?
FV: It was really ...
MV: Nice? What do you sound like when you have an orgasm?
Moan?
FV: Hmm. Well, actually quiet so that my parents don't
hear.
MV: Your father would get mad if he thought you were
masturbating?
FV: He walked in on me one time.
MV: Oh, God! What I would do to walk in on you
masturbating, no doubt! What did he do to you?
FV: He made me read every single Scripture that ....
MV: What do you look like, sweetie?
FV: Tall, thin.
MV: How much do you weigh?
FV: Probably 145.
MV: So what do the Scriptures say about masturbating?
FV: He gave me the one about David and Bathsheba. He had
unclean thoughts about her bathing. And then he goes into
the book of Romans.
MV: Can I tell you something about your dad real quick,
honey? And I am going to be painfully honest. He's been
whacking off since he was 12 years old. Yes he has. He
does it every single night whether he has sex with your mom
or not. He thinks about other women besides your mom.
FV: I know that my father and mom still do because she's
been pregnant recently.
MV: So he still masturbates. A guy always masturbates. So
how do you feel when we tell you your dad masturbates? Is
that gross?
FV: I don't want to think about that.
MV: He's probably twisting them off in the bathroom right
now.
Have you every kissed a girl?
FV: No.
MV: Have you every wanted to?
FV: Yeah.
MV: When you are hanging out with your girlfriends, have
you ever fantasized about going back to their house and
having a sleepover?
FV: My freshman year in high school there was a girl who
told me she liked me, and we were going to have a sleepover
but my dad met her ....
MV: That son-of-a-bitch! That bastard! That a-hole!
Do you have a car?
FV: On the weekends.
MV: Tell you what. We'll let you come up here, and we'll
find a really attractive woman that you can sleep with.
Would you masturbate in front of us?
FV: Uhm, I don't know.
MV: Why not? You're 17. That's not crazy! You're totally
legal. I think we could get you up here. I think we can
get you to buzz your beaver in front of us.
FV: I've never even like French-kissed a guy.
MV: Oh well, of course, we'll take care of that! We'll do
that for the first time here. We will corrupt you, baby!
Hmmm. You won't even want to go home after this. You know
what? You will be tearing pages out of your daddy's Bible.
You're 17. You'll be smoking them! You're 17. You're
legal. You can do whatever you want.
Are you a little turned on right now?
FV: Well, yeah.
MV: Would you masturbate on the phone for us?
FV: I don't know.
MV: Just do it a little bit. Now, we are going to turn off
the microphone and be real quiet. We want to hear you moan.
Go ahead. Go ahead.
FV: I'm going to be embarrassed.
MV: Go ahead, baby. Don't worry. It's kind of erotic.
The mikes are off.
FV: I like quietly whimper.
MV: That's cool. Just do it, and we're turning the mikes
off right now.
FV: Okay. Bye-bye.
Colt, are you on the phone?
Boy: Hello. Yeah.
FV: Get off the phone!
MV: Oh my God! Hey, Kenneth, are you the brother?
Boy: Uh-huh.
MV: Do you ever watch her at night while she's
masturbating?
FV: Don't say that!
Boy: Do what?
FV: Don't say that! Don't say that!
MV: God [bleep] son-of-a-bitch! Whore! [Beep] sucker!
She's dogging her vagina every single night with your dad's
flashlight!
FV: Hang up the phone!
MV: God [beep]! God [beep]! You're going to hell! You're
a sinner! I can't believe you're pregnant, you bitch!
You're a whore!
FV: Hang up the phone!
Boy: What kind of [unintelligible] is this?
MV: [Laughter]
Announcer: Extreme night-time radio with Kramer and
Twitch on 97.1, the Eagle.
(2) August 3, 2000 (7:45 p.m. to 9:15 p.m.)
MV: Male Voice(s) (Hosts)
MV2: Adult-film actor (Carlos)
FV: Adult-film actress (Gina)
MV3: Hosts' assistant (Frat)
MV: Carlos is on the way and porno chicks.
...
MV: We also have Gina Rider. She's a porn star. She's
going to be performing at the Clubhouse.
9:30 your first show, right?
FV: Yes, and midnight.
MV: You've done a couple hundred adult films, almost 200.
You're from San Antonio. You've got a boyfriend?
FV: Nooooooooo.
MV: Are you having sex with us?
FV: Who?
MV: If she says no, it's a joke. If she says yes, let's do
it!
MV: So, Carlos, you're on the road all the time, especially
with this tour. How's your sex life?
MV2: Great! It really is, dude.
MV: Carlos, I know you, and you're so business-minded. You
don't drink. I bet you don't bang chicks on the road.
MV2: No, I don't.
MV: Do you have a girlfriend?
MV2: Remember that tall blonde, thin chick?
MV: Is she hot?
MV2: Unbelievable, dude!
MV: Is she Mexican?
MV2: No. She's a white girl from Oregon.
MV: Traitor!
MV2: Traitor? What are you talking about, dude?
MV: It's still pink in the middle.
MV2: Exactly!
MV: You are faithful to her?
MV2: Yeah. I may talk a lot of smack, dude, but you know.
MV: Is she faithful to you?
MV2: I have no idea, dude.
MV: Wait. Now is a blow [beep] cheating?
MV2: I tell her this. If you cheat on me, and it's a
mistake, just don't tell me.
MV: A mistake? I fell on a penis. It slipped and fell in
....
MV2: If she slips and falls into a pair of hairy [beep].
Just ignore it. I don't need that phone call.
MV: Is she in town now? Is she touring with you?
MV2: She usually comes. She took this week off.
MV: Are you coming with us tonight? We're going to the
Clubhouse tonight.
MV2: Of course. I'm getting in trouble. She has friends
here who are listening in to the show, and I am going to get
a phone call.
MV: Does she get angry when you go to a boob bar?
MV2: I don't know. Sometimes.
MV: Is she jealous?
MV2: Sometimes. But she's freaky, though. She fulfills
those, like, you know ....
MV: Threesomes?
MV2: She does some crazy stuff, dude.
MV: Is she bi? Does she monge?
MV2: No, no, no. She don't do that. It's hard enough to
please one chick to do it well. Am I right? Hard enough to
really please you and make you feel like .... I'm talking
about in real life.
MV: You've even said it on your tape before. Why is it
when a woman doesn't have an orgasm, why is it my fault?
It's not your fault! It's not your fault, Carlos. Come on!
MV2: I know it's not my fault. But what I'm saying is it's
hard to please one woman.
MV: That's what the other bitch is for, Carlos!
MV2: Yeah, but then the talk after. It's like bitch in
stereo! Oh my God, you didn't do it right! And what about
my left boob? I would just kill myself, dude.
MV: We're going to talk to Gina Rider. Keep it on the
Eagle.
[Music]
MV: What do you look like, girl? You are gorgeous, girl!
Oh my God! She sneezed and her boobs popped out. She just
said, ``I'm going to get naked.'' You can take off that
dress if you want.
MV2: Very nice booty, man. And she says she enjoys the back
door action.
MV: Oh, you do?
FV: I love it!
MV: For the first time? You just had your first back door?
FV: No. I've been doing it in my personal life for about a
year now. But I just did my first scene on camera like two
months ago. It was great!
MV: We're going to come back and see what happens here in
the studio. Mmm, mmm, mmm, delicious!
...
MV: Who give a crap! Frat boy is in his boxers right now.
I have a feeling something is going to go down in here. Are
you willing to get naked, Frat? Take them off.
MV3: I am not getting all the way butt naked. I can't do
that.
MV: None of us guys want to see your peepee. And she's
seen tons of them. I've got one, man. Come on!
MV2: I'll pull it out just so you feel comfortable.
MV: Frat, you'll go and whip it out in a bar and go and
talk to people with your peepee out.
MV3: But I am usually like lit, dude, when I am doing that.
MV: Puss, puss, puss!
MV2: I'll pull it out, and mine's got a hood on it. How bad
could yours be?
MV: [To FV] Cut or uncut, how do you like them?
FV: I've been playing with cut, uncut, lately. I've always
had cut, and my [beep] buddy's uncut.
MV3: I'm uncut, baby! I've got a chance!
MV: I want to ask her to have sex with me, but I'm not in
front of you because you're going to mess it up. She might
say, ``Yeah.'' But you, my friend, would screw it up!
O.K., so get naked, Gina.
MV2: Dude! What is wrong with you, bro?
MV: I just don't want someone that looks like you to sleep
with her. Look at her. She is phenomenonally gorgeous. It
would hurt my feelings.
MV2: Ah, poor fatso!
FV: We're all hanging out tonight, right?
MV: All right, Gina. Your new flick is ``Skin Tight,'' and
you are 23, and you've been doing porno since you were how
old?
FV: 21.
MV: So, will you demonstrate on Frat? You know, wrestlers
have moves and stuff. Porno stars have got to have
something that they do that makes them special. Frat, get
naked!
Do you have some kind of signature move that is yours like
...
[To Frat] Grab your ankles and like take off your pants.
Don't be a pud! Get naked!
MV3: Who's going hold the mike?
MV2: That's not your problem, dude. You're a big fat puss!
MV: You're going to get naked in front of a porn star.
MV2: What are you afraid of? She's like a doctor. She's
seen it.
MV: Gina, how far would you go with Frat in here? He's a
pretty good looking guy. Nothing he's got is going to
compare to anything you've seen before. Nothing. We've
seen it.
FV: I've got to see what he looks like.
MV: Take it off, Frat! Take it off!
MV2: Did you see that look of horror?
....
_________________________
1 See, e.g., Citicasters Co. (WXTB(FM)), 13 FCC Rcd 15381
(Mass Media Bureau 1998). See also Regent Licensee of
Flagstaff, Inc. (KZGL(FM)), 15 FCC Rcd 17286 (Enforcement
Bureau 2000).
2 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Guidelines'').
4 Forfeiture Guidelines, 12 FCC Rcd at 17113.
5 See 47 C.F.R. § 1.1914.