Before the

[Federal Communications Commission]{.smallcaps}

# Washington, D.C. 20554

In the Matter of ) )

**AMFM RADIO LICENSES, L.L.C.,** ) File No. EB-03-IH-0121

) NAL/Acct. No. 200432080016

Licensee of Station ) FRN# 0001656586

WWDC(FM), Washington, DC ) Facility ID# 8682

)

)

**CLEAR CHANNEL BROADCASTING** ) File No. EB-03-IH-0736

**LICENSES, INC.**, ) NAL/Acct. No. 200432080017

) FRN# 0001587971

Licensee of Station ) Facility ID# 11961

WRXL(FM), Richmond, Virginia )

)

> )

**CAPSTAR TX LIMITED** ) File No. EB-03-IH-0737

**PARTNERSHIP,** ) NAL/Acct. No. 200432080018

) FRN# 0003474905

Licensee of Station ) Facility ID# 4674

WOSC(FM), Bethany Beach, Delaware )

###### NOTICE OF APPARENT LIABILITY FOR FORFEITURE

# Adopted: March 4, 2004 Released: March 12, 2004 

By the Commission: Commissioner Martin concurring and issuing a
statement; Commissioner Adelstein issuing a statement; and Commissioner
Copps dissenting and issuing a statement.

# I. INTRODUCTION

In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to section 503(b) of the Communications Act of 1934, as amended
(the "Act") and section 1.80 of the Commission's rules,[^1] we grant a
complaint from Stephen M. Arner[^2] and find that the captioned
licensees, all of which are subsidiaries of Clear Channel
Communications, Inc. ("Clear Channel"), apparently violated 18 U.S.C. §
1464 and 47 C.F.R. § 73.3999, by willfully and repeatedly broadcasting
indecent material over the stations on March 13, 2003. Based upon our
review of the facts and circumstances in this case and Clear Channel's
history of transgressions relating to the broadcast of indecent material
over stations licensed to its subsidiaries, we conclude that Clear
Channel is apparently liable for a total monetary forfeiture in the
amount of Two Hundred Forty-Seven Thousand Five Hundred Dollars
(\$247,500), the statutory maximum for the nine apparent violations at
issue here.

######## II. BACKGROUND

########  

2\. The Commission received a complaint that Station WWDC(FM),
Washington, D.C., broadcast indecent material on March 13, 2003, at
approximately 5:51 p.m. The complaint regarded material that was
apparently a clip rebroadcast from the program "Elliot in the Morning,"
which was broadcast by three subsidiaries of Clear Channel, (1) AMFM
Radio Licenses, LLC ("AMFM"), licensee of WWDC(FM), Washington, D.C.,
(2) Clear Channel Broadcasting Licenses, Inc. ("CCBL"), licensee of
WRXL(FM), Richmond, Virginia, and (3) Capstar TX Limited Partnership
("Capstar"), licensee of WOSC(FM), Bethany Beach, Delaware. The
complaint stated that the indecent material included an "on-air voice
interviewing an unidentified person and discussing the birthday of Ron
Jeremy, a famous actor from adult films" and that when asked what the
interviewee liked about Jeremy she responded, "The way he licks
pussy."[^3]

3\. On August 11, 2003, the Enforcement Bureau issued a letter of
inquiry ("LOI") to AMFM, including the complaint as Attachment A to the
LOI.[^4] Clear Channel, the ultimate parent company of AMFM, CCBL and
Capstar, responded to the LOI.[^5] Clear Channel confirmed that on March
13, 2003, at approximately 9:50 a.m., AMFM, CCBL and Capstar, broadcast
the following language during "Dianne's Dirt of the Day" segment on the
"Elliot in the Morning" program:

> Diane's Voice: Finally porn legend Ron Jeremy is hitting the half
> century mark.
>
> Elliot's Voice: Oh, Happy Birthday Ron.
>
> Diane's Voice: 50 years old today. Despite turning 50, Ron Jeremy says
> he's still going strong in the sack and continues to film sex scenes
> without needing Viagra. He credits his good health to avoiding drugs
> for all these years. And I figured what a better time than now to play
> Craig's interview with one Ron Jeremy fan.
>
> Female Voice: I masturbate with Jeremy's video every day. Uh, not
> every day, but every other weekend.
>
> Craig's Voice: Wow. What is it that you like about him so much?
>
> Female Voice: The way he licks pussy. I want to do a threesome with
> him. See who's the best. If I can lick better or he can lick better.
>
> Diane's Voice: She is a looker.
>
> Elliot's Voice: Hot. Got a great dental plan in her office.

This material was apparently rebroadcast on March 13, 2003 during
promotional segments on WWDC(FM) at approximately 12:50 and 5:50 p.m.,
on WRXL(FM) at approximately 1:40 and 6:40 p.m., and on WOSC(FM) at
approximately 12:50 and 7:50 p.m.[^6]

**III. DISCUSSION**

4\. The Federal Communications Commission is authorized to license radio
and television broadcast stations and is responsible for enforcing the
Commission's rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in overseeing program
content is very limited. The First Amendment to the United States
Constitution and section 326 of the Act prohibit the Commission from
censoring program material and from interfering with broadcasters'
freedom of expression.[^7] The Commission does, however, have the
authority to enforce statutory and regulatory provisions restricting
indecency and obscenity. Specifically, it is a violation of federal law
to broadcast obscene or indecent programming. Title 18 of the United
States Code, Section 1464 prohibits the utterance of "any obscene,
indecent or profane language by means of radio communication."[^8] In
addition, section 73.3999 of the Commission's rules provides that radio
and television stations shall not broadcast obscene material at any
time, and, consistent with a subsequent statute and court decision,[^9]
shall not broadcast indecent material during the period 6 a.m. through
10 p.m.[^10]

5\. Under section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order issued by the
Commission shall be liable to the United States for a forfeiture
penalty.[^11] In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the notice must be
received, and the person against whom the notice has been issued must
have an opportunity to show, in writing, why no such forfeiture penalty
should be imposed.[^12] The Commission will then issue a forfeiture if
it finds by a preponderance of the evidence that the person has violated
the Act or a Commission rule.[^13] As we set forth in greater detail
below, we conclude under this standard that Clear Channel is apparently
liable for forfeitures for its apparent willful and repeated violations
of 18 U.S.C. § 1464 and section 73.3999 of the Commission's rules.

**A. [Indecency Analysis]{.underline}**

6\. Any consideration of government action against allegedly indecent
programming must take into account the fact that such speech is
protected under the First Amendment.[^14] The federal courts
consistently have upheld Congress's authority to regulate the broadcast
of indecent material, as well the Commission's interpretation and
implementation of the governing statute.[^15] Nevertheless, the First
Amendment is a critical constitutional limitation that demands that, in
indecency determinations, we proceed cautiously and with appropriate
restraint.[^16]

7\. The Commission defines indecent speech as language that, in context,
depicts or describes sexual or excretory activities or organs in terms
patently offensive as measured by contemporary community standards for
the broadcast medium.[^17]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be patently offensive as
> measured by contemporary community standards for the broadcast
> medium.[^18]

8\. As an initial matter, Clear Channel does not dispute that it aired
material describing or depicting sexual and excretory activities and
organs.[^19] The material contained discussions of the sexual
performance of an adult film actor, masturbation, group sex, and oral
sex. Accordingly, we conclude that the broadcasts satisfy the first
prong of our indecency analysis. The material, therefore, warrants
further scrutiny to determine whether or not it was patently offensive
as measured by contemporary community standards for the broadcast
medium.[^20]

9\. In our assessment of whether broadcast material is patently
offensive, "the full context in which the material appeared is
critically important."[^21] Three principal factors are significant to
this contextual analysis: (1) the explicitness or graphic nature of the
description; (2) whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities; and (3)
whether the material appears to pander or is used to titillate or
shock.[^22] In examining these three factors, we must weigh and balance
them to determine whether the broadcast material is patently offensive
because "\[e\]ach indecency case presents its own particular mix of
these, and possibly, other factors."[^23] In particular cases, the
weight of one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and consequently
indecent,[^24] or, alternatively, removing the broadcast material from
the realm of indecency.[^25] We turn now to our analysis of the three
principal factors in our decision.

10\. First, the comments and dialogue carried on by the program hosts
and the Jeremy fan during the broadcasts contained graphic and explicit
references to sexual activities, including repeated discussion of oral
sex, group sex, masturbation and the sexual performance of a "porn
legend." The Jeremy fan states how frequently she "masturbate\[s\] with
Jeremy's video." She states that she likes "\[t\]he way he licks pussy.
I want to do a threesome with him \[to see\] if I can lick better or he
can lick better." To the extent that colloquial terms that the program
hosts and the Jeremy fan used to describe sexual activities could be
described as innuendo rather than as direct references, they are
nonetheless sufficient to render the material actionably indecent
because the sexual import of those terms was "unmistakable."[^26] Given
the explicit references and the graphic manner in which the broadcasts
described the activities of the subjects engaging in the purported sex
acts, in particular the reference to "licking pussy," there is no
non-sexual meaning that a listener could possibly have attributed to
these terms.[^27] Clear Channel argues that the "five isolated words,"
*i.e.*, "\[t\]he way he licks pussy," were not patently offensive. Clear
Channel ignores the full context of these words \-- the discussion of a
"porn legend" not needing Viagra at age 50 to perform in sex scenes; a
female fan's masturbation practices involving the adult film actor's
videos; and the fan's desire to have a group sex with the actor to
determine who can perform better oral sex. Therefore, we find that the
broadcast at issue described sexual activities through the use of direct
references, and/or innuendo that were sufficiently explicit or graphic
to be deemed patently offensive as measured by contemporary community
standards for the broadcast medium.

11\. Second, the comments and dialogue carried on by the program hosts
and the Jeremy fan continuously focused on sexual activities in graphic
detail. The sexual discussion and references were not fleeting or
isolated. Rather, discussions about and references to sexual activity
pervaded the Jeremy segment. Each of the three captioned Clear Channel
stations not only aired the Jeremy segment live, but rebroadcast the
segment two more times to promote the "Elliot in the Morning" program.
The sexual discussions and references were sufficiently dwelled upon and
repeated to constitute patently offensive material as measured by
contemporary standards for the broadcast medium.

12\. Finally, several characteristics of the manner in which the
stations presented this material establish that the licensees broadcast
this material to pander to, titillate and/or shock listeners. The
interview with the Jeremy fan elicited specific information regarding
her sexual practices and desires, focusing on the topics of
masturbation, oral sex, and group sex in particular. By broadcasting
this interview, the program hosts set out to pander to and to shock
listeners. Further, the broadcasts and rebroadcasts occurred at times
when there was a reasonable risk that children, whom the government has
a recognized and compelling interest to shield from indecent
material,[^28] would be in the audience. For these reasons, we find that
all of the March 13, 2003 broadcasts were patently offensive as measured
by contemporary community standards for the broadcast medium.

13\. Each of the Clear Channel entities broadcast and rebroadcast the
Jeremy segment between 6 a.m. and 10 p.m., at times of day when the
broadcast of indecent material is explicitly prohibited by section
73.3999 of the Commission's rules. Because the Jeremy segment appears to
have contained indecent speech and was broadcast at times of the day
when indecent speech is prohibited, each of the broadcasts and
rebroadcasts is legally actionable. We therefore find that each of the
three captioned stations (Stations WWDC(FM), WRXL(FM), and WOSC(FM))
each broadcast three apparently indecent segments, in apparent and
willful violation of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.

**B. [Proposed Forfeiture]{.underline}**

14\. Based upon our review of the record in this case, we conclude that
Clear Channel is apparently liable for forfeitures for willful and
repeated violations of our rules for broadcasting indecent material over
Stations WWDC(FM), WRXL(FM) and WOSC(FM). The Commission's *Forfeiture
Policy Statement* sets a base forfeiture amount of \$7,000.00 for
transmission of indecent materials.[^29] 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."[^30] In
this case, taking all of these factors into consideration, we find that
Clear Channel is apparently liable for forfeitures reflecting the
proposed imposition of the statutory maximum of \$27,500 for each
broadcast and rebroadcast of apparently indecent material over Stations
WWDC(FM), WRXL(FM) and WOSC(FM). Each station broadcast the apparently
indecent material three times for a total of nine times. Accordingly,
Clear Channel is apparently liable for a total monetary forfeiture in
the amount of Two Hundred Forty-Seven Thousand Five Hundred Dollars
(\$247,500), which represents \$27,500 for each of the nine apparent
violations at issue. Based upon our review of the entire record, we
believe that this upward adjustment to the statutory maximum is
warranted. There is a recent history of indecent broadcasts on stations
controlled by Clear Channel, which justifies imposition of the maximum
forfeiture amount.[^31] We reiterate our recent statement that multiple
serious violations of our indecency rule by broadcasters for broadcasts
after our April 2003 warning may well lead to license revocation
proceedings.[^32] Furthermore, separate indecent utterances within a
program segment may be separately actionable.

**IV. ORDERING CLAUSES**

15\. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules,[^33] that Clear Channel Communications, Inc., is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount
of Two Hundred Forty-Seven Thousand Five Hundred Dollars (\$247,500) for
willfully and repeatedly violating 18 U.S.C. § 1464 and section 73.3999
of the Commission's rules.

16\. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this Notice, Clear
Channel Communications, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.

17\. Payment of the forfeitures 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 MUST INCLUDE the FCC Registration Numbers
("FRN") referenced above and also should note the NAL/Account Numbers
referenced above.

18\. The responses, if any, must be mailed to William H. Davenport,
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. Nos. referenced above.

19\. 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.

20\. 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.[^34]

21\. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two-year
tracking process regarding the size of entities involved in forfeitures.
If you qualify as a small entity and if you wish to be treated as a
small entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Investigations and Hearings Division.
Your certification should indicate whether you, including your parent
entity and its subsidiaries, meet one of the definitions set forth in
the list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this Notice of
Apparent Liability. This information will be used for tracking purposes
only. Your response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section 503(b) of
the Communications Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at (202)
418-0990.

22\. Accordingly, IT IS ORDERED, that the complaint filed against
Station WWDC-FM's broadcast of March 13, 2003, IS GRANTED, and the
complaint proceeding IS HEREBY TERMINATED.

23\. IT IS FURTHER ORDERED, that a copy of this *Notice of Apparent
Liability For Forfeiture* shall be sent by Certified Mail, Return
Receipt Requested, to Richard W. Wolf, Vice President, Clear Channel
Communications Inc., 200 East Basse Road, San Antonio, TX 78209-8328;
Troy G. Langham, FCC Specialist, Clear Channel Communications Inc., 2625
S. Memorial Drive, Suite A, Tulsa, OK 74129; Capstar TX Limited
Partnership, FCC Contact, 600 Congress Ave., Suite 1400, Austin, TX
78701.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

####### Secretary 

**Attachment A**

***FCC List of Small Entities***

October 2002

**ATTACHMENT A**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: AMFM Radio Licenses, L.L.C., Licensee of Station WWDC-FM,
Washington, D.C;, Clear Channel Broadcasting Licenses, Inc., Licensee of
Station WRXL(FM), Richmond, Virginia; Capstar TX Limited Partnership,
Licensee of Station WOSC(FM), Bethany Beach, Delaware; Notice of
Apparent Liability for Forfeiture*

In this case, three Clear Channel stations aired graphic and explicit
sexual content on nine different occasions \-- including the use of
sexual material in promotional rebroadcasts. Clear Channel has been the
subject of repeated indecency actions at the FCC, and this show in
particular has been the subject of previous complaints. Yet,
notwithstanding the repeated nature of Clear Channel's transgressions,
the majority proposes a mere \$27,500 fine for each incident. Such a
"cost of doing business fine" is never going to stop the media's slide
to the bottom.

For repeat offenders as in this case, I believe the Commission should
have designated these cases for license revocation hearings. I recognize
that Clear Channel has taken some steps in recent days to address
indecency on its stations. A hearing would have provided the Commission
with the ability to consider what actions the stations took in response
to these broadcasts and to decide on the appropriate penalty.

I am discouraged that my colleagues would not join me in taking a firm
stand here against indecency on the airwaves. The time has come for the
Commission to send a message that it is serious about enforcing the
indecency laws of our country. That message has yet to go forth.

**CONCURRING STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: AMFM Radio Licenses, L.L.C., Licensee of Station WWDC(FM),
Washington, DC; Clear Channel Broadcasting Licenses, Inc., Licensee of
Station WRXL(FM), Richmond, Virginia; Capstar TX Limited Partnership,
Licensee of Station WOSC(FM), Bethany Beach, Delaware; Notice of
Apparent Liability for Forfeiture*

Consistent with my past statements, I believe we should be fining
broadcasters on a "per utterance" basis.[^35] I also believe that, when
determining the amount of fine, we should take into consideration the
circumstances and actions of the particular broadcaster. Unlike some
broadcasters, Clear Channel recently has agreed to pay an unprecedented
fine, without contest, for past indecency violations. In addition, it
has announced a comprehensive policy to reduce the likelihood that
indecent broadcasts occur. Indeed, it has already taken steps to
implement its "zero-tolerance" policy. We also should take such steps
into consideration.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: AMFM Radio Licenses, L.L.C., Licensee of Station WWDC(FM),
Washington, DC; Clear Channel Broadcasting Licenses, Inc., Licensee of
Station WRXL(FM), Richmond, Virginia; Capstar TX Limited Partnership,
Licensee of Station WOSC(FM), Bethany Beach, Delaware; Notice of
Apparent Liability for Forfeiture*

I support this Notice of Apparent Liability for the broadcast of
indecent material at a time when children may be in the audience. By
issuing this NAL, we step up to our responsibility to enforce statutory
and regulatory provisions restricting broadcast indecency. Once again,
we impose statutory maximum fines and remind broadcasters that the
Commission can and will avail itself of a range of enforcement
sanctions, including acting on each separate indecent utterance, or
initiating proceedings that could result in the revocation of station
licenses for serious, repeated violations.

Since I arrived at the Commission, we have greatly stepped up our
enforcement against indecent broadcasts. I expect that these stepped-up
actions will convince broadcasters that they cannot ignore their
responsibility to serve the public interest and to avoid the broadcast
of indecent material over the public airwaves. Indeed, Clear Channel has
recently taken steps to show that it is meeting this obligation,
including the payment of an unprecedented fine without objection for a
past indecency violation.

[^1]: 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).

[^2]: *See* Letter from Stephen M. Arner to Federal Communications
    Commission, Enforcement Bureau, Investigations and Hearings
    Division, dated March 17, 2003 ("Complaint Letter").

[^3]: Complaint Letter at 1.

[^4]: *See* Letter from Maureen F. Del Duca, Chief, Investigations and
    Hearings Division, Enforcement Bureau, Federal Communications
    Commission to AMFM Radio Licenses, L.L.C., dated August 11, 2003
    ("LOI").

[^5]: *See* Letter from Richard W. Wolf, Vice President, Clear Channel
    Communications, Inc., to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated August 29, 2003 ("Clear Channel
    Response to Inquiry"). Clear Channel enclosed with its response to
    the LOI a compact disc recording of the material broadcast at
    approximately 9:50 a.m. on March 13, 2003.

[^6]: In its response to the LOI , Clear Channel states that it
    rebroadcast the material in Attachment A to the LOI, *i.e.*, the
    Complaint Letter, which described the interview with the Jeremy fan
    and specifically referenced the words, "\[t\]he way he licks pussy."
    Clear Channel also states that its program promotions are
    approximately one minute in length, which is the approximate
    duration of the entire segment concerning Jeremy. *See* Clear
    Channel Response to Inquiry at 1-2.

[^7]: *See* 47 U.S.C. § 326.

[^8]: 18 U.S.C. § 1464.

[^9]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992) (setting the current safe harbor of 10 p.m. to 6
    a.m. for the broadcast of indecent material); *see also* *Action for
    Children's Television v. FCC,* 58 F. 3d 654 (D.C. Cir. 1995) (*en
    banc)*, *cert. denied*, 516 U.S. 1072 (1996) *("ACT III")*
    (affirming restrictions prohibiting the transmission of indecent
    material between the hours of 6 a.m. and 10 p.m.).

[^10]: *See* 47 C.F.R. § 73.3999.

[^11]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); s*ee also* 47
    U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
    1464). Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law. 47 U.S.C. §
    312(f)(1). The legislative history to section 312(f)(1) of the Act
    clarifies that this definition of willful applies to both sections
    312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the section 503(b) context. *See, e.g., Application for Review of
    Southern California Broadcasting Co.*, Memorandum Opinion and Order,
    6 FCC Rcd 4387, 4388 (1991) ("*Southern California Broadcasting
    Co.*"). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc., Grand Isle, Louisiana*, Notice of Apparent
    Liability for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
    Notice of Apparent Liability for, *inter alia*, a cable television
    operator's repeated signal leakage). "Repeated" merely means that
    the act was committed or omitted more than once, or lasts more than
    one day. *Southern California Broadcasting Co.,* 6 FCC Rcd at 4388,
    ¶ 5; *Callais Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^12]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^13]: *See, e.g., SBC Communications, Inc.,* Apparent Liability for
    Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
    (forfeiture paid).

[^14]: U.S. [Const.]{.smallcaps}, amend. I; *see Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^15]: Title 18 of the United States Code, Section 1464 (18 U.S.C. §
    1464), prohibits the utterance of "any obscene, indecent or profane
    language by means of radio communication." *FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978). *See also ACT I*, 852 F.2d at
    1339; *Action for Children's Television v. FCC,* 932 F.2d 1504, 1508
    (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992) ("*ACT II*");
    *ACT III,* 58 F. 3d at 657*.*

[^16]: *ACT I,* 852 F.2d at 1344 ("Broadcast material that is indecent
    but not obscene is protected by the First Amendment; the FCC may
    regulate such material only with due respect for the high value our
    Constitution places on freedom and choice in what people may say and
    hear."). *See id*. at 1340 n.14 (" . . . the potential chilling
    effect of the FCC's generic definition of indecency will be tempered
    by the Commission's restrained enforcement policy.").

[^17]: *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)).

[^18]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶¶ 7-8
    *(emphasis in original)*.

[^19]: *See* Clear Channel Response to Inquiry at 3 (arguing that the
    material was "brief and fleeting, not presented in a pandering
    fashion, and certainly not expressed in terms sufficiently graphic
    or explicit enough to be considered patently offensive.")

[^20]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and with respect to
    Commission decisions, does not encompass any particular geographic
    area. *See Indecency Policy Statement* 16 FCC Rcd at 8002, ¶ 8 and
    n. 15.

[^21]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 9 (*emphasis
    in original)*.

[^22]: *Id.* at 8002-15, ¶¶ 8-23.

[^23]: *Id.* at 8003, ¶ 10.

[^24]: *Id.* at 8009, ¶ 19 (*citing Tempe Radio, Inc (KUPD-FM)*, 12 FCC
    Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
    explicit nature of references to sex with children outweighed the
    fleeting nature of the references); *EZ New Orleans, Inc.
    (WEZB(FM))*, 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same);
    *see also Indecency Policy Statement,* 16 FCC Rcd at 8009, ¶ 19
    (citing *LBJS Broadcasting Company, L.P. (KLBJ(FM))*, 13 FCC Rcd
    20956 (MMB 1998) (forfeiture paid) (brief statement "suck my dick
    you fucking cunt" found indecent due to explicit nature). "The more
    explicit or graphic the description or depiction, the greater the
    likelihood that the material will be considered patently offensive."
    *Indecency Policy Statement,* 16 FCC Rcd at 8003, ¶ 12, 13 (citing
    WQAM *License Limited Partnership (WQAM(AM))*, 15 FCC Rcd 1475
    (1999), *a'ffd* 15 FCC Rcd 2518 (2000), *recon. denied*, 15 FCC Rcd
    13549 (song including lyrics "\[y\]ou'll have more fun when I make
    you come, with my nose between your thighs" found indecent by
    Commission because "song's sexual import is lewd, inescapable and
    understandable").

[^25]: *Indecency Policy Statement,* 16 FCC Rcd at 8010, ¶ 20 ("the
    manner and purpose of a presentation may well preclude an indecency
    determination even though other factors, such as explicitness, might
    weigh in favor of an indecency finding").

[^26]: *See Indecency Policy Statement,* 16 FCC Rcd at 8003-04, ¶ 12;
    *see also Telemundo of Puerto Rico License Corp. (WKAQ-TV),* 16 FCC
    Rcd 7157 (EB 2001) (forfeiture paid); *Citcasters Co. (KEGL(FM),* 15
    FCC Rcd 19091 (EB 2000) (forfeiture paid).

[^27]: *See Sagittarius Broadcast Corporation,* 7 FCC Rcd 6873, 6874
    (1972) (subsequent history omitted).

[^28]: *See ACT III*, 58 F.3d at 660-63.

[^29]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087, 17113 (1997), *recon. denied,* 15 FCC Rcd 303
    (1999) ("*Forfeiture Policy Statement*"*);* 47 C.F.R. § 1.80(b).

[^30]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^31]: *Clear Channel Broadcasting Licenses, Inc.*, FCC 04-17 (Jan. 27,
    2004); *AMFM Radio Licenses, LLC (WWDC(FM))*, FCC 03-233 (Oct. 2,
    2003) (forfeiture paid) (indecent broadcast involving the "Elliot in
    the Morning" program); *Citicasters Co.* (*KEGL*(FM)), 16 FCC Rcd
    7546 (EB 2001) (forfeiture paid); *Citicasters Co. (WXTB(FM)),* 15
    RCC Rcd 25,453 (2000) (forfeiture paid); *Citicasters Co.
    (KSJO(FM)),* 15 FCC Rcd 19,095 (EB 2000) (forfeiture paid);
    *Citicasters Co. (KSJO(FM)),* 15 FCC Rcd 19091 (EB 2000) (forfeiture
    paid); *Citicasters Co. (WXTB(FM)),* 15 FCC Rcd 11,906 (2000)
    (forfeiture paid).

[^32]: *See Infinity Broadcasting NAL(WKRK-FM),* 18 FCC Rcd 6915, 6919,
    ¶ 13 (2003); Forfeiture Order, FCC 03-302, rel. Dec. 8, 2003; *see
    also AMFM FM Radio Licenses LLC (WWDC(FM)),* 2003 WL 22251146 (2003)
    (forfeiture paid). We note that the misconduct at issue here before
    us occurred prior to our warning regarding possible revocation
    proceedings.

[^33]: 47 C.F.R. § 1.80.

[^34]: *See* 47 C.F.R. § 1.1914.

[^35]: *See, e.g.*, Separate Statement of Commissioner Martin, *Infinity
    Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit,
    Michigan*, Notice of Apparent Liability, 18 FCC Rcd. 6915, 6939
    (2003) (urging the Commission to fine violators "per utterance").