**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. 99090433

)

CBS Radio License, Inc. ) NAL/Acct. No. 2001320800008

) Facility ID #18527

Licensee of Station WLLD(FM), ) JWS

Holmes Beach, Florida )

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted:** December 1, 2000 **Released:** December 5, 2000

By the Chief, Enforcement Bureau:

## I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that CBS Radio License, Inc. ("CBS"), licensee of Station WLLD(FM),
Holmes Beach, Florida, has apparently violated 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules, 47 C.F.R. § 73.3999, by
willfully broadcasting indecent language. Based on our review of the
facts and circumstances in this case, we conclude that CBS is apparently
liable for a forfeiture in the amount of seven thousand dollars
(\$7,000).

# 

# II. BACKGROUND

2\. The Commission received a complaint concerning a September 11, 1999,
broadcast on WLLD(FM), called "The Last Damn Show," which aired between
6 p.m. to 11 p.m. that night. The complaint included a tape recording of
the entire show as well as a transcript and related tape of those
portions of the broadcast the complainant found most offensive. The
transcript contained ten discrete segments, all of which allegedly aired
before 10 p.m. After reviewing the transcript and tape, we issued a
letter of inquiry to the licensee.

3\. In its response, CBS describes the "The Last Damn Show" as a local
concert organized by the station, which featured rap and hip hop music
performed by award winning artists. CBS acknowledges airing the
performance and further acknowledges that performers sometimes used
certain expletives. Nevertheless, CBS contends that the complaint should
be dismissed because it believes the tapes supplied by the complainant
are confusing, imprecise as to time and significantly edited. In this
regard, CBS submits that edits are audible and that lines of otherwise
unrelated material were spliced together in order to create the
impression of extended bursts of profanity. Consequently, according to
CBS, the transcript may not accurately represent the context in which
the words and lyrics appeared in relation to the concert as a whole. In
any event, CBS notes that the segments transcribed represent only nine
minutes from a five-hour show.

4\. With respect to the particular segments, CBS offers various
corrections (which we have accepted) and submits that the final three
segments of the transcript aired after 10 p.m. As for the remaining
material, CBS contends it contains no indecent speech. In this regard,
CBS argues that current community standards find acceptable material
that regularly addresses sexual topics and that current prime time shows
use graphic language and show graphic sexual scenes in programs directed
at youthful audiences. In CBS' view, the public's acceptance of such
material as well as the airplay given to popular songs that contain
sexual themes or expletives demonstrate that contemporary community
standards have evolved to the point where the transcribed material
should not be found indecent. In this regard, CBS submits that the
artists' "rampant" popularity coupled with the praise coming from
listeners and the absence of complaints following the broadcast are
further indications that their lyrics are in step with contemporary
community standards. Finally, CBS argues that the context of the
material -- live, spontaneous and unscripted performances by persons not
under control of the station, which contained occasional expletives and
which was mixed with commercials, interviews, recorded music and
announcer "patter" -- warrants a conclusion that the material was not
indecent. In this regard, CBS asserts that WLLD(FM)'s broadcast of
various expletives was not intended to be gratuitous, pandering or
titillating and that, in any event, the expletives were not used to
convey a sexual or excretory meaning.

**III. DISCUSSION**

5\. Section 503(b)(1) of the Communications Act (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 \-\--
>
> ...
>
> \(D\) 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 portions of the "The Last Damn Show"
were indecent and that the licensee's broadcast of that language was
willful.

6\. 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]{.underline}, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (*citing* [Pacifica Foundation]{.underline}, 56 FCC 2d 94, 98
(1975), *aff'd sub nom*. [FCC v. Pacifica Foundation]{.underline}, 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]{.underline}, 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]{.underline}, 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.

7\. After carefully considering the record before us, it appears that
CBS willfully violated our indecency rule with respect to the language
appearing herein. CBS acknowledges that it broadcast the language in
question before 10 p.m. The language contains patently offensive
references to oral sex as well as sexual intercourse. Illustrative
segments of the transcript are attached. The Commission previously has
found similar material that contains unmistakable patently offensive
references to sexual activities to be indecent,[^1] and we see no basis
for finding otherwise in this case. In this regard, we disagree with CBS
that the cited material or anything like it has ever been found
acceptable under contemporary community standards for the broadcast
medium.

8\. As for the context of the material, we recognize that the cited
language occurred in connection with a live performance of rap and hip
hop artists. However, we see no reason to excuse CBS in this case. If
anything, considering CBS' apparent awareness of the lyrics normally
appearing in the artists' material (*see* CBS' Response at p. 12), CBS
should have taken precautions to avoid airing such indecent utterances.
Apparently, it chose not to do so. *Cf.* [Regent Licensee of Flagstaff,
Inc. (KZGL(FM))]{.underline}, DA 00-2041 (Enf. Bureau, released
September 7, 2000) (An interview with an adult movie actress at an adult
video store could reasonably give rise to indecent speech, and a
licensee's failure to take precautionary measures is no bar to finding
that the broadcast of indecent speech was willful). Moreover, we reject
CBS' argument regarding the popularity of the artists. Neither the
statute nor our case law confers upon a broadcaster the right to air
indecent language simply because the speaker happens to be popular.
*See* [The Rusk Corporation (KLOL(FM))]{.underline}, 8 FCC Rcd 3228,
3229 (1993).

9\. Section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 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 Act or the Commission's
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 that
it was taking the action in question, irrespective of any intent to
violate the Commission's rules.[^2] As explained above, CBS knew that it
was broadcasting "The Last Damn Show" and each of the cited segments. In
assessing a forfeiture, we take into account the statutory factors set
forth in section 503(b)(2)(D) of the Act. Those factors include 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]

10\. The Commission's [Forfeiture Guidelines]{.underline} 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 and that
neither an upward nor downward adjustment should be made.

**IV. ORDERING CLAUSES**

11\. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act,[^5] and sections 0.111, 0.311 and 1.80 of the Commission\'s
rules,[^6] CBS Radio License, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of seven thousand dollars
(\$7,000) for willfully violating the 18 U.S.C. § 1464 and section
73.3999 of the Commission\'s rules.

12\. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission\'s rules,[^7] within thirty days of this NOTICE OF APPARENT
LIABILITY, CBS Radio License, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.

13\. 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.

14\. 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.

15\. 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.

16\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^8]

17\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
CBS Radio License, Inc., 10220 River Road, Suite 305, Potomac, Maryland
20854, attention: Stephen A. Hildebrandt,

Vice President; to H. Anthony Lehv, Leventhal, Senter & Lerman,
P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C. 20006-1809.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

### ATTACHMENT

Radio Station: WLLD(FM), Holmes Beach, Florida

Date/Time Broadcast: September 11, 1999, between 6 p.m. and 10 p.m.

Material Broadcast: "The Last Damn Show" (Rap lyrics and comments before
a large crowd)

FV: Female Voice

MV: Male Voice

FV: (Rap lyrics) You know you mother fuckers can't beat.
(Unintelligible) You mother fuckers can't beat. (Unintelligible) You
mother fuckers can't read me. (Unintelligible) You mother fuckers, you
keep (Unintelligible) Fuck your family. (Unintelligible) You take your
shit, you take your shit. (Unintelligible) I'm a superior bitch, a
serious bitch. (Unintelligible) A serious bitch. (Unintelligible) I
won't take that shit. (Unintelligible) Niggers and your mother fucking
wide mouth. (Unintelligible) Damn that bitch can pump with it. You want
to bang, nigger. You want to bang, nigger. You're off the chain, nigger.
We running game, nigger. You want to bang, nigger. It ain't no thing,
nigger. We off the chain, nigger. (Unintelligible)

MV: We ain't going to have no more feedback problem. Fuck it. We're
going to go all the way back where you all feel (Unintelligible) mother
fucking noise. (Unintelligible) God damn, where are my pussy eating
niggers? Any my niggers into eating pussy? Y'all make some noise. Hey,
where are the girls? If you're eating pussy, where you at? That's it.
Oh, they all like it. I ain't eating no pussy tonight. If you all don't
like it, fuck it. I ain't going to beg you. You like it? \[Edit\] And my
dog don't give a fuck and we'll fuck you sucking up coke, you know.
Trying to explain this shit away, niggers. I don't think y'll heard me.
I got MTV Best New Artist Slim Shady backstage. Slim mother fucking
Shady backstage. Make some noise.

[^1]: *See, e.g.,* [WQAM License Limited Partnership]{.underline}, 15
    FCC Rcd 2518, *recon. denied*, 15 FCC Rcd 15349 (2000).

[^2]: *See* [Jerry Szoka]{.underline}, 14 FCC Rcd 9857, 9865 (1999);
    [Southern California Broadcasting Co.]{.underline}, 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]{.underline}, 12 FCC Rcd
    17087, 17100-01 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("[Forfeiture Guidelines]{.underline}").

[^4]: [Forfeiture Guidelines]{.underline}, *supra* note 3, 12 FCC Rcd at
    17113.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^7]: 47 C.F.R. § 1.80.

[^8]: *See* 47 C.F.R. § 1.1914.