**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-03-IH-0159       |
|                                  | *) |                              |
| **CLEAR CHANNEL BROADCASTING     | ** | NAL/Acct. No. 200423080023   |
| LICENSES, INC.**                 |    |                              |
|                                  | *  | FRN No. 0001587971           |
| Licensee of Stations             | *) |                              |
|                                  | ** | Facility Id. No. 11965       |
| WBGG-FM, Fort Lauderdale,        |    |                              |
| Florida                          | *  | Facility Id. No. 53457       |
|                                  | *) |                              |
| WTKS-FM, Cocoa Beach, Florida    | ** | Facility Id. No. 53593       |
|                                  |    |                              |
| WTFX-FM, Louisville, Kentucky    | *  | FRN No. 0004953659           |
|                                  | *) |                              |
| **CITICASTERS LICENSES, L.P.**   | ** | Facility Id. No. 13504       |
|                                  |    |                              |
| Licensee of Stations             | *  | Facility Id. No. 24958       |
|                                  | *) |                              |
| KIOZ(FM), San Diego, California  | ** | FRN No. 0003474905           |
|                                  |    |                              |
| WNVE(FM), Honeoye Falls, New     | *  | Facility Id. No. 60153       |
| York                             | *) |                              |
|                                  | ** |                              |
| **CAPSTAR TX LIMITED             |    |                              |
| PARTNERSHIP**                    | *  |                              |
|                                  | *) |                              |
| Licensee of Station              | ** |                              |
|                                  |    |                              |
| WXDX-FM, Pittsburgh,             | *  |                              |
| Pennsylvania                     | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** April 7, 2004 **Released:** April 8, 2004

**By the Commission:** Commissioners Copps and Adelstein issuing
separate statements.

# I. INTRODUCTION

1.  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 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 airing program material during
    two segments of the "Howard Stern Show" on April 9, 2003, that
    apparently violate the federal restrictions regarding the broadcast
    of indecent material.[^2] Based upon the totality of the evidence
    before us and Clear Channel's history of repeated broadcasts of
    indecent material over stations licensed to its subsidiaries, we
    conclude that these Clear Channel subsidiaries are apparently liable
    for forfeitures totaling Four Hundred Ninety-Five Thousand Dollars
    (\$495,000.00). Clear Channel Broadcasting Licenses, Inc. ("CCBL")
    is apparently liable for a monetary forfeiture in the amount of Two
    Hundred Forty-Seven Thousand Five Hundred Dollars (\$247,500.00) for
    nine (9) apparent indecency violations on its captioned stations.
    Citicasters Licenses, L.P. ("Citicasters") is apparently liable for
    a monetary for forfeiture in the amount of One Hundred Sixty-five
    Thousand Dollars (\$165,000.00) for six (6) apparent indecency
    violations on its captioned stations. Capstar TX Limited Partnership
    ("Capstar") is apparently liable for a monetary forfeiture in the
    amount of Eighty-Two Thousand Five Hundred Dollars (\$82,500.00) for
    three (3) indecency violations on its captioned station.

    **II. BACKGROUND**

2.  The Enforcement Bureau received a complaint alleging that Station
    WBGG-FM aired indecent material during the "Howard Stern Show," on
    April 9, 2003, between approximately 7:25 and 7:45 a.m. The
    complainant submitted a transcript of this broadcast.[^3] The
    material at issue includes dialogue between cast members regarding
    the sexual practices of certain program cast members and a
    discussion with a guest regarding "Sphincterine," a purported
    personal hygiene product designed for use prior to sexual activity.
    [^4]

3.  The Enforcement Bureau sent Clear Channel Broadcasting Licenses,
    Inc., the licensee of the station, a letter of inquiry, and attached
    the transcript submitted by the complainant.[^5] In its response,
    Clear Channel, as the ultimate parent of the licensee, acknowledges
    that on April 9, 2003, between 6:00 and 11:00 a.m., WBGG-FM
    broadcast the "Howard Stern Show," which it receives via a satellite
    feed. [^6] Clear Channel further states that because the station
    does not receive transcriptions of the show or make recordings of
    the show, it cannot "confirm with certainty" that the material
    provided in the complainant's transcription was included in the
    station's broadcast of the "Howard Stern Show" on the date and at
    the time indicated in the complaint.[^7] Clear Channel submitted the
    Declaration of WBGG-FM's producer, however, who stated that he
    recalled the material at issue and that his records do not indicate
    that he deleted or "flushed" any of the material aired during the
    station's April 9 broadcast of the Howard Stern Show.[^8]

4.  Clear Channel also states that, in addition to WBGG-FM, five other
    stations licensed to its subsidiaries air the "Howard Stern Show,"
    and presumably aired the complained-of program.[^9] Clear Channel
    further states that none of these five stations make permanent
    recordings of the "Howard Stern Show," and therefore cannot confirm
    the date and time of their broadcasts.[^10] Clear Channel admits
    however, that there is no specific reason to question that each of
    these five stations broadcast the April 9, 2003, "Howard Stern Show"
    on that day and in its entirety.[^11]

    **III. DISCUSSION**

5.  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.[^12] 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."[^13] 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 shall
    not broadcast indecent material during the period 6 a.m. through 10
    p.m.

6.  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.[^14] 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.[^15] 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.[^16] As
    we set forth in greater detail below, we conclude under this
    standard that Clear Channel is apparently liable for a forfeiture
    for its apparent willful violation of 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.

    **A. Indecency Analysis**

7.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^17] 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.[^18]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands that, in indecency determinations, we
    proceed cautiously and with appropriate restraint.[^19]

8.  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.[^20]

> 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.[^21]

9.  As an initial matter, the material at issue described sexual and
    excretory activities and organs, and Clear Channel does not dispute
    this.[^22] 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.[^23]

10. In our assessment of whether broadcast material is patently
    offensive, "the *full context* in which the material appeared is
    critically important."[^24] 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.[^25] 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."[^26] In
    particular cases, one or two of the factors may outweigh the others,
    either rendering the broadcast material patently offensive and
    consequently indecent,[^27] or, alternatively, removing the
    broadcast material from the realm of indecency.[^28] We now turn to
    an analysis of these factors as they relate to each segment to
    determine whether the material that was broadcast, in context, was
    patently offensive as measured by contemporary community standards.

11. First, we find that the segment in which the show's host discusses
    the sexual practices of certain cast members to be patently
    offensive. Specifically, the host, in discussing the sex life of
    John, a fellow cast member, and John's wife, notes that they "have
    anal every other time they do it" and that John's wife "loves
    anal."[^29] The host further discusses John's wife's embarrassment
    that intimate details of their sex life are a topic of public
    discussion.[^30] This segment also includes the host's comments
    regarding his personal revulsion at the thought of a naked, sweaty,
    obese man engaging in cunnilingus.[^31] Finally, during this entire
    segment, the host's discussion of anal sex and his commentary on
    oral sex are punctuated by the sound of someone passing gas or
    evacuating. Given the explicit description of oral sex and the
    sustained discussion of a cast member's anal-sex practices, all of
    which were accompanied by sound effects of flatulence and
    evacuation, it is clear that the material was designed to shock and
    pander. This segment is similar to material found to contain
    patently offensive descriptions of sexual activities.[^32]
    Accordingly, we find the material in this segment of the April 9,
    2003, broadcast to be patently offensive as measured by contemporary
    community standards for the broadcast medium, and thus indecent.

12. Based on our finding that this segment appears to be actionably
    indecent, we disagree with Clear Channel's contention that this
    material is not patently offensive because it was less explicit than
    other material found to be not actionably indecent in various
    unpublished staff decisions.[^33] Some of the material at issue in
    these unpublished decisions was less explicit than the material at
    issue here.[^34] To the extent that the staff, in other unpublished
    decisions,[^35] may have erred by determining that the material in
    those cases was not indecent, those unpublished decisions are not
    binding on the Commission.[^36] That is particularly the case here,
    where published decisions, including those cited in the Commission's
    *Indecency Policy Statement*, provide guidance indicating that
    material such as that contained in this case is indecent. In the
    instant case, we find that the complained-of material in this
    segment included references to sexual activity through both direct
    references and/or innuendo that we deem patently offensive as
    measured by contemporary community standards for the broadcast
    medium.[^37] This material is similar to other material found to
    contain sufficiently explicit and graphic references to sexual
    activity, and thus satisfies the first factor of our contextual
    analysis.[^38] Moreover, the references to sexual activity are
    repeated throughout the segment, and the entire segment dwells on
    the sexual activities of certain cast members. The manner in which
    this material was presented establishes, under the third factor,
    that the segment was used to pander, titillate and shock listeners.

13. In the other relevant segment, there is a discussion of
    "Sphincterine," a purported personal hygiene product. We also find
    that this segment is patently offensive. Specifically, the show's
    host interviewed the inventor of "Sphincterine" and promoted the
    sale of the product. During the course of this interview, the host
    and guest made repeated references to oral sex and to the olfactory
    aspects of excretory activity. For instance, the host noted that the
    guest had invented "Sphincterine" because "a chick was giving you
    oral and you had 'swamp ass'."[^39] The host elicited specific
    information about the encounter that lead to the creation of the
    product, namely that odors emanating from the inventor's genital
    area repelled his girlfriend when she had attempted to initiate
    fellatio.[^40] Finally, this segment, like the earlier one involving
    discussions involving anal sex, was interspersed with the sound of
    flatulence. Given the detailed discussion of the sounds and smells
    associated with excretory activity and oral sex, which were
    accompanied by the sound effects of flatulence and were dwelled
    upon, it is clear that the material was used to shock and pander.
    Accordingly, we also find the material in this segment of the April
    9, 2003, broadcast to be patently offensive as measured by
    contemporary community standards for the broadcast medium.

14. We disagree with Clear Channel's argument that this material does
    not dwell on or repeat at length descriptions of sexual or excretory
    activities and that the material was not intended to pander, nor was
    it presented for its shock value.[^41] The discussion of the use of
    "Sphincterine," including references to sexual and excretory organs
    and activities, was sustained.[^42] Moreover, the discussion
    included commentary and sound effects such that the tone of the
    discussion is vulgar and lewd. There are repeated flatulence sound
    effects interspersed in the discussion of the use of the product
    prior to sex [^43] and the show's host comments on his own personal
    hygiene practices such that he would shower before initiating sexual
    activity with the guest's girlfriend.[^44] Thus, unlike the
    unpublished staff decisions cited by Clear Channel,[^45] the overall
    context in which the material was presented appears to have been
    used to pander and shock.[^46]

15. After reviewing the record, we believe that these two segments of
    the April 9, 2003, "Howard Stern Show" are patently offensive within
    the meaning of our indecency definition. As to the first segment, we
    find that the material involving a discussion of the sexual
    practices, including anal sex, between certain of the show's cast
    members, is patently offensive.[^47] As for the second segment, we
    find that the discussion of "Sphincterine," a product purportedly
    developed for maintaining anal and genital hygiene, is patently
    offensive.[^48] In the second segment, two individuals uttered
    apparently indecent material, whereas in the first segment one
    individual uttered apparently indecent material. The broadcast over
    Station WBGG-FM took place after the Commission's notice that it
    might treat separate utterances as separate violations.[^49] We
    believe that, under the specific circumstances at issue here, it is
    appropriate to treat the statements by each of the individuals as
    two separate utterances and therefore two separate violations,
    contrary to our more traditional approach of treating a specific
    program or program segment as indecent.[^50] Consequently, we
    conclude that there are three (3) apparent violations of the
    Commission's indecency rules for each of the captioned stations that
    aired this material. Three of the captioned stations are licensed to
    CCBL, and thus CCBL is apparently liable for a total of nine (9)
    indecency violations. Citicasters is the licensee of two of the
    captioned stations, and thus is apparently liable for a total of
    six (6) indecency violations, and Capstar is the license of one
    captioned station, and thus is liable for a total of three (3)
    indecency violations.

16. It is undisputed that the complained-of material was broadcast
    within the 6 a.m. to 10 p.m. time frame relevant to an indecency
    determination under section 73.3999 of the Commission's rules. Thus,
    because there was a reasonable risk that children may have been in
    the audience at the time that the material at issue was broadcast on
    April 9, 2003, the material broadcast is legally actionable.[^51] By
    broadcasting this material, Clear Channel apparently violated the
    prohibitions in 18 U.S.C. § 1464 and the Commission's rule against
    broadcast indecency. The Commission is aware that the "Howard Stern
    Show" originates and is broadcast over stations owned by Infinity
    Broadcasting Corporation. We instruct the Enforcement Bureau to
    initiate an investigation into Infinity's broadcast of the April 9,
    2003, "Howard Stern Show" at issue in this case.

    **B. Proposed Forfeiture**

17. Based upon our review of the record in this case, we conclude that
    CCBL, Citicasters and Capstar, subsidiaries of Clear Channel, are
    apparently liable for the willful and repeated violation of our
    rules. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent or obscene
    materials.[^52] 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."[^53] In this case, taking all of these factors into
    consideration, we find that CCBL, Citicasters and Capstar are
    apparently liable for the maximum statutory forfeiture amount of
    Twenty-Seven Thousand Five Hundred Dollars (\$27,500.00) for each
    apparent indecency violation. In particular, there is a recent
    history of indecent broadcasts on stations controlled by Clear
    Channel, the corporate parent of CCBL, Citicasters and Capstar,
    which justifies imposition of the statutory maximum forfeiture
    amount for each of the apparent indecency violations. [^54]

18. Because we find that CCBL, Citicasters and Capstar apparently
    violated 18 U.S.C. § 1464 and Section 73.3999 of the Commission's
    rules by broadcasting the complained of material and that and that
    each violation is subject to an apparent forfeiture in the amount of
    \$27,500, we conclude that CCBL is liable for a monetary forfeiture
    in the amount of Two Hundred Forty-Seven Thousand Five Hundred
    Dollars (\$247,500.00), that Citicasters Licenses, L.P. is
    apparently liable for a monetary forfeiture in the amount of One
    Hundred Sixty-Five Thousand Dollars (\$165,000.00) and that Capstar
    is apparently liable for a monetary forfeiture in the amount of
    Eighty-Two Thousand Five Hundred Dollars (\$82,500.00) for willfully
    and repeatedly broadcasting indecent material during the "Howard
    Stern Show" on April 9, 2003.[^55] Thus, the aggregate forfeiture
    against these subsidiaries of Clear Channel is Four Hundred
    Ninety-Five Thousand Dollars (\$495,000.00). We remind licensees
    that serious, repeated cases of indecency violations could be
    subject to license revocation.

    **IV. ORDERING CLAUSES**

19. 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,[^56] that Clear Channel Broadcasting Licenses,
    Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
    the amount of Two Hundred Forty-Seven Thousand Five Hundred Dollars
    (\$247,500.00) for willfully violating 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.

20. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^57] that Citicasters Licenses, L.P., is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    One Hundred Sixty-Five Thousand Dollars (\$165,000.00) for willfully
    violating 18 U.S.C. § 1464 and section 73.3999 of the Commission's
    rules.

21. IT IS FURTHER ORDERED pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^58] that Capstar TX Limited Partnership is
    hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
    amount of Eighty-Two Thousand Five Thousand Dollars (\$82,500.00)
    for willfully violating 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

22. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL*,
    Clear Channel Broadcasting Licenses, Inc. SHALL PAY the full amount
    of the proposed forfeiture (\$247,500.00) or SHALL FILE a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

23. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL*,
    Citicasters Licenses, L.P. SHALL PAY the full amount of the proposed
    forfeiture (\$165,000.00) or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

24. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL*,
    Capstar TX Limited Partnership SHALL PAY the full amount of the
    proposed forfeiture (\$82,500.00) or SHALL FILE a written statement
    seeking reduction or cancellation of the proposed forfeiture.

25. 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 MUST INCLUDE the FCC Registration Numbers
    ("FRN") referenced above and also should note the NAL/Account Number
    referenced above.

26. The response, if any, must be mailed to William Davenport, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington D.C. 20554 and MUST INCLUDE the NAL/Account Number
    referenced above.

27. 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.

28. Requests for payment of the full amount of this *NAL* under an
    installment plan should be sent to: Chief, Revenue and Receivables
    Operations Group, 445 12th Street, S.W., Washington, D.C.
    20554.[^59]

29. 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 Clear Channel qualifies as a small entity and if it
    wishes to be treated as a small entity for tracking purposes, it
    should so certify to us within thirty (30) days of this *NAL*,
    either in its response to the *NAL* or in a separate filing to be
    sent to the Investigations and Hearings Division. The certification
    should indicate whether Clear Channel, including its 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 B of this *NAL*. This
    information will be used for tracking purposes only. Clear Channel's
    response or failure to respond to this question will have no effect
    on its rights and responsibilities pursuant to Section 503(b) of the
    Communications Act. If Clear Channel has questions regarding any of
    the information contained in Attachment B, it should contact OCBO
    at (202) 418-0990.

30. Accordingly, IT IS ORDERED, that the complaint filed against Station
    WBGG-FM's broadcast of the "Howard Stern Show" on April 9, 2003, IS
    GRANTED to the extent indicated herein, AND IS OTHERWISE DENIED, and
    the complaint proceeding IS HEREBY TERMINATED.[^60]

31. IT IS FURTHER ORDERED, that a copy of this *NAL* shall be sent by
    Certified Mail Return Receipt Requested to Mr. Richard W. Wolf, Vice
    President, Clear Channel Communications, Inc., c/o Clear Channel
    Worldwide, 200 East Basse Road, San Antonio, Texas 78209-8328, to
    Clear Channel Broadcasting Licenses, Inc., Citicasters Licenses,
    L.P., and Capstar TX Limited Partnership, 2625 S. Memorial Drive,
    Suite A, Tulsa, Oklahoma 74129, with a copy to Clear Channel's
    counsel, John M. Burgett, Esq., Wiley, Rein & Fielding, LLP, 1776 K
    Street, N.W., Washington, D.C., 20006, and to the complainant.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**ATTACHMENT A**

**Program Transcript**

EB-03-IH-0159

Radio Station: WBGG-FM, Fort Lauderdale, Florida

Date/Time Broadcast: April 9, 2003, between 7:25 and 7:45 a.m.

Material Broadcast: The Howard Stern Show

Stern: ...John's anal talk. John revealed that in his sex life with his
wife they have anal every other time they do it., \[Sound of flatulence
or anal evacuation\] which seems excessive. Some people wrote in. Here's
one: "John must have some homosexual fantasies based on his need for
\[flatulence\] anal. \[flatulence\] We all know it doesn't feel nearly
as good as straight sex." I don't know if a man or a woman wrote that.
\[flatulence\]

"Jesus H. Christ, just the thought of that \[flatulence\] obese slob
Artie on the bed all sweaty, hairy, and naked giving his girlfriend
\[flatulence\] a, what do you call that, using his mouth in a really
dirty place makes we want to friggin' shoot myself. Imagining the scene
with Bobbabooey was no better. \[flatulence\]."

Robin: Oh, my God.

Finally, "if Stuttering John keeps up with his every other time
\[flatulence\]\[at this point you can clearly hear that something is
deleted or "dumped" from Stern's commentary by means of the broadcast
delay capability\] unless of course he's so small that it isn't much of
a strain on her."

John: Hey, Howard, I was only kidding about that.

Stern: No you weren't. Why, your wife came down on you?

John: Let's just say it wasn't a pleasant day in the Menendez household.

Stern: Really, why? Is she embarrassed?

John: Yes, she doesn't, you know, want our sex life out \[flatulence\].

Stern: Oh please! So, what, no more anal?

John: \[flatulence\] Let's just say it's every once in awhile
\[flatulence\].

Stern: Aye, yi, yi. You were lying, then, yesterday.

John: Yeah, I was lying \[flatulence\].

Stern: Okay. What?

Another voice: You know what? The in-laws heard. That's got to be tough.

Stern: Was it the in-laws?

John: No, no, she just happened to turn it on and goes "What is this?"

Stern: But I've heard from her \[flatulence\] that she loves anal.

John: Yes, but that's at the dinner table with us, not with the whole
world listening \[flatulence\].

Another voice, imitating John's mother-in-law: I saw you telling
everyone that you give anal to my daughter. \[flatulence\]

\* \* \*

Stern: So Bruce, I'm going to let you plug your product Sphincterine.
Now I even said I'd let you do your jingle. Give them the Sphincterine
jingle, first of all.

Bruce: All right, this is a band called the Dead Beatles. \[Musical
jingle begins\]: Sphincterine makes you tingle, feel so clean. Oh,
Sphincterine. Cleans you sphincter and what's between. Ho, hey!

Stern: What did you pay for that?

Bruce: Nothing, that's my band the Dead Beatles.

Stern: The Sphincterine product. How much money have you invested in
this so far would you say?

Bruce: Probably about twenty grand.

Stern: And it's ...

Robin: How much have you made?

Bruce: I probably have tripled that in just about six months, nine
months.

Robin: Really?

Stern: You say you invented Sphincterine because a chick was giving you
oral and you had a swamp ass?

Bruce: Yeah, that's basically it, Howard, yeah. I had a bad experience
and my girl friend who's in the green room right now was in a
spontaneous mood and she caught me at a bad time and ...

Stern: Is you girlfriend good looking?

Bruce: Yeah, she's cute.

Stern: Yeah. So, oh, let me talk to her. I want to hear what swamp ass
smells like.

Bruce: I'm not sure she's going to want to do this.

Stern: What, describe swamp ass?

Bruce: She can describe swamp ass, but I'm not so sure she wants to go
on the air.

Stern: So, when you develop a product, are you a chemist, that you would
know how to do it?

Bruce: Yes.

Stern: What?

Bruce: I'm a chemist. I develop products for a natural product company.
And, uh, ...

Stern: So you decided to branch out on your own.

Bruce: Yeah.

Stern: Oh, there's your girlfriend. She is cute.

Bruce: Thank you.

Stern: So you were giving this animal oral, and you said "Man you've got
swamp ass"? Was that how it went down?

Female Guest (Cat): Actually no, I went close for oral.

Bruce: How close? Nine inches away, I think it was.

Cat: Yeah.

Stern: Yeah. And you just said ...

Robin: You couldn't get any closer.

Stern: And you said, "Oh, my God. You stink." \[recording of flatulence
noise\] What happened? Had you gone to the bathroom that day and not
showered?

Bruce: Yeah, it was like the end of the day, and Cat is a spontaneous
woman and she just caught me with my pants down \[flatulence noise\].

Stern: Okay \[flatulence noise\] and you're hot by the way.

Cat: Thank you.

Stern: Yeah. What are you doing with a guy with swamp ass?
\[flatulence\]

Bruce: Hey, it was a one shot deal.

Stern: Honey, before I'd bang you I'd take a nice shower.

Cat: You would?

Stern: Yeah, I sure would

Cat: Oh. That would be nice.

Stern: Yeah. So ...

Bruce: I go beyond that. Now I Sphincterine before I bang her.

Stern: Talk about Sphincterine. So, you developed this product, and
let's say I go to the bathroom, and I don't feel fresh.

Bruce: You were talking recently about when you go to the bathroom, you
use toilet paper with water on it. This product is really excellent for
that particular situation you have.

Stern: What is it, a spray bottle or a cream?

Bruce: It's a liquid, and it also comes in towelettes. So what you've
got is something that you, the liquid, that you apply to toilet paper
like water, as you once said on the air.

Stern: I see.

Bruce: You put it on, it's all natural ingredients.

Stern: Is it like a baby wipe?

Bruce: It's like a baby wipe, but those wipes are loaded with chemicals
and bad ingredients. This is all natural, and it feels good. And you
know, I'm going to let Cat talk about another purpose, uh, Cat.

Stern: I don't know if I want an infomercial.

Bruce: No, Howard, this is cool.

Stern: You know your dog was probably going to beat Artie anyway.

Bruce: The bottom line is that Cat uses it on the front as well.

Stern: Really? No problems using that? It doesn't affect you in anyway?

Cat: No. Actually, but it has a nice effect. It makes you tingle...

October 2002

**ATTACHMENT B**

+--------------------------------+-------------------------------------+
| **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)     |
+--------------------------------+-------------------------------------+

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Clear Channel Broadcasting Licenses, Inc., Licensee of Stations
WBGG-FM, Fort Lauderdale, Florida, WTKS-FM, Cocoa Beach, Florida, and
WTFX-FM, Louisville, Kentucky; Citicasters Licenses, L.P., Licensee,
Stations KIOZ(FM), San Diego, California, and WNVE(FM), Honeoye Falls,
New York; and Capstar TX Limited Partnership, Licensee of Station
WXDX-FM, Pittsburgh, Pennsylvania, Notice of Apparent Liability for
Forfeiture*

I have long advocated that the Commission use all of the tools it has to
tackle indecency on the public's airwaves. Today's decision is a step
forward towards imposing meaningful fines. For the first time, the
Commission assesses a fine against more than a single utterance, rather
than counting an entire program as one utterance. In addition, the
Commission makes clear that its indecency enforcement will address not
only the station that is the subject of a complaint, but also any other
station that aired the same programming. I therefore vote to approve
this decision.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

> *Re: Clear Channel Broadcasting Licenses, Inc., Licensee of Stations
> WBGG-FM, Fort Lauderdale, Florida, WTKS-FM, Cocoa Beach, Florida,
> WTFX-FM, Louisville, Kentucky; Citicasters Licenses, L.P., Licensee of
> Stations KIOZ(FM), San Diego, California, WNVE(FM), Honeoye Falls, New
> York; Capstar TX Limited Partnership, Licensee of Station WXDX-FM,
> Pittsburgh, Pennsylvania; 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. For the first
time, we impose fines based upon separate utterances. While this is not
the most egregious case that I have seen, the material broadcast is
indecent under our standards and the fines appropriately account for the
violation of our rules.

Since I arrived at the Commission, we have greatly stepped up our
enforcement against indecent broadcasts. I expect that stepped-up
actions like those we take today 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.

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

[^2]: *See* 18 U.S.C. § 1464, 47 C.F.R. § 73.3999 and 47 U.S.C. §
    503(b).

[^3]: Letter from complainant, to Enforcement Bureau, Federal
    Communications Commission, dated April 24, 2003.

[^4]: Attachment A, Program Transcript.

[^5]: Letter from the Chief, Investigations and Hearings Division,
    Enforcement Bureau, to Clear Channel Broadcasting Licenses, Inc.,
    dated July 18, 2003.

[^6]: *See* Letter from Richard W. Wolf, Vice President, Clear Channel
    Communications, Inc., to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated August 18, 2003 ("*Clear Channel
    Response*"), at 1.

[^7]: *Id*.

[^8]: *Clear Channel Response* at 1 and Declaration of Clint Ferro,
    WBGG-FM producer for the "Howard Stern Show." Clear Channel
    indicates that WBGG-FM broadcasts the show on a 7.5-second delay so
    that it can block out or "flush" any material that it does not want
    to air.

[^9]: *Id.* at 2-4. The five other stations are: WTKS-FM, Cocoa Beach,
    Florida; WTFX-FM, Louisville, Kentucky; WNVE(FM), Honeoye Falls, New
    York; KIOZ(FM), San Diego, California; and WXDX-FM, Pittsburgh,
    Pennsylvania.

[^10]: *Clear Channel Response* at 2-4.

[^11]: *Id.*

[^12]: *See* U.S. [Const.]{.smallcaps}, amend. I; 47 U.S.C. § 326.

[^13]: 18 U.S.C. § 1464.

[^14]: 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 18 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.

[^15]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^16]: *See, e.g., SBC Communications, Inc., Apparent Liability for
    Forfeiture*, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
    (2002)(forfeiture paid).

[^17]: 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*").

[^18]: 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*");
    *Action for Children's Television v. FCC,* 58 F. 3d 654 (D.C. Cir.
    1995)*, cert. denied,* 516 U.S. 1043 (1996) *("ACT III").*

[^19]: *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."), *ACT I*, 852 F.2d 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.")

[^20]: *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)).

[^21]: *Industry Guidance on the Commission's Case Law Interpreting 18
    U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency
    ("Indecency Policy Statement")*, 16 FCC Rcd 7999, 8002, ¶¶ 7-8
    (2001) (emphasis in original).

[^22]: *Clear Channel Response* at 5.

[^23]: 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* at 8002, ¶ 8 and n. 15.

[^24]: *Id.* at 8002, ¶ 9 (emphasis in original).

[^25]: *Id.* at 8002-15, ¶¶ 8-23.

[^26]: *Id.* at 8003, ¶ 10.

[^27]: *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).

[^28]: *Id.* 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").

[^29]: Attachment A at 11-12. *Id*.

[^30]: *Id*.

[^31]: *Id*. at 11. There is a reference to oral sex as "using his mouth
    in a really dirty place." To the extent that the discussion also
    used innuendo, rather than direct references, it is nonetheless
    sufficient to render the material actionably indecent because the
    sexual import of those references was "unmistakable." *See*
    *Indecency Policy Statement,* 16 FCC Rcd at 8002-04, ¶¶ 9-12 (2001).

[^32]: *See, e.g., Citicasters Co. (KEGL(FM)),* Notice of Apparent
    Liability for Monetary Forfeiture, 16 FCC Rcd 7546 (EB
    2001)(forfeiture paid)(conversation among hosts and adult film
    actors concerning, among other things, oral and anal sex); *Infinity
    Broadcasting Corporation of Pennsylvania (WYSP(FM)),* 3 FCC Rcd 930,
    932-33 ¶ 20 (1987)(subsequent history omitted).

[^33]: *See Clear Channel Response* at 4-5, citing various unpublished
    staff denials.

[^34]: *See* Letter from Charles W. Kelley, Chief, Investigations and
    Hearings Division, Enforcement Bureau, dated May 3, 2002, EB
    -01-IH-0326; Letter from Charles W. Kelley, Chief, Investigations
    and Hearings Division, Enforcement Bureau, dated April. 23, 2002, EB
    -02-IH-0078; Letter from Charles W. Kelley, Chief, Investigations
    and Hearings Division, Enforcement Bureau, dated Feb. 5, 2002,
    EB-01-IH-0357.

[^35]: *See* *Clear Channel Response* at 4-5, citing Memo from Thom
    Winkler to WIOD(AM) Complaint File, dated Apr. 21, 1997, FCC Ref.
    No. 91010196; Letter from Norman Goldstein, Chief, Complaints and
    Political Programming Branch, Enforcement Division, Mass Media
    Bureau, dated May 15, 1997, FCC Ref. No. 94069521; Letter from
    Norman Goldstein, Chief, Complaints and Political Programming
    Branch, Enforcement Division, Mass Media Bureau, dated Jan. 23,
    1997, FCC Ref. No. 94110410.

[^36]: *See, e.g., Amor Family Broadcasting Group v. FCC*, 918 F. 2d
    960, 962 (D.C. Cir. 1990), *citing Homemakers North Shore, Inc. v.
    Bowen*, 832 F.2d 408, 413 (7^th^ Cir. 1987). *See also Lorenzo Jelks
    v. FCC*, 146 F.3d 878, 881 (D.C. Cir. 1998).

[^37]: *See* Attachment A, Program Transcript at 11-12.

[^38]: *See Clear Channel Broadcasting Licenses, Inc.(WPLA(FM),
    WCKT(FM)),* Notice of Apparent Liability for Monetary Forfeiture, 19
    FCC Rcd 1768, ¶ 9 (2004).

[^39]: Attachment A, Program Transcript at 12.

[^40]: *Id*. at 13.

[^41]: *Clear Channel Response* at 6.

[^42]: *See, e.g.,* *Emmis Radio License Corporation (WKQX(FM))*, Notice
    of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd 5263, 5266
    ¶¶ 10-11 (EB 2002); Apparent Liability for Forfeiture, Forfeiture
    Order, 17 FCC Rcd 21697, 21699 ¶ 9 (EB 2002), *recon. denied,*
    Memorandum Opinion and Order, 19 FCC Rcd 2697 (EB 2004).

[^43]: Attachment A, Program Transcript, at 12-14.

[^44]: *Id.* at 12.

[^45]: *Clear Channel Response* at 6, citing Letter from Charles W.
    Kelley, Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated Feb. 5, 2002, EB-01-IH-0315; Letter from Charles W.
    Kelley, Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated April 22, 2002, EB-02-IH-0040.

[^46]: *See, e.g., Citicasters Co (KSJO(FM)),* Notice of Apparent
    Liability for Monetary Forfeiture, 15 FCC Rcd 19095, 19096, ¶6 (EB
    2000)(forfeiture paid) (discussion of sexual techniques featuring
    nationally recognized sex therapist and certified clinical
    sexologist presented in pandering and titillating manner).

[^47]: Attachment A, Program Transcript at 11-12, ending at "\*\*\*."

[^48]: *Id*. at 12-14, beginning after "\*\*\*."

[^49]: *Infinity Broadcasting Operations, Inc., (WKRK-FM),* Notice of
    Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 6915,
    6918-19, ¶ 12 (2003), Apparent Liability for Forfeiture, Forfeiture
    Order, 18 FCC 26360 (2003), *recon. denied,* 19 FCC Rcd \_\_\_\_,
    FCC 04-34 (rel. Mar. 5, 2004).

[^50]: In this regard, we note that, depending on the facts in specific
    cases, we may also treat some of the specific words or phrases
    spoken by one individual to be separate utterances themselves and
    therefore separate violations.

[^51]: *See ACT III*, 58 F.3d at 660-63.

[^52]: *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). The
    Commission amended its rules to increase the maximum penalties to
    account for inflation since the last adjustment of the penalty
    rates. The new rates apply to violations that occur or continue
    after November 13, 2000. *See Order, In the Matter of Amendment of
    Section 1.80(b) of the Commission's Rules and Adjustment of
    Forfeiture Maxima to Reflect Inflation,* 15 FCC Rcd 18221 (2000).

[^53]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^54]: *AMFM Radio Licenses, LLC (WWDC(FM))*, Notice of Apparent
    Liability for Monetary Forfeiture, 18 FCC Rcd 19917 (2003)
    (forfeiture paid); *Citicasters Co.* (*KEGL*(FM)), Notice of
    Apparent Liability for Monetary Forfeiture 16 FCC Rcd 7546 (EB 2001)
    (forfeiture paid); *Citicasters Co. (KSJO(FM)),* Notice of Apparent
    Liability for Monetary Forfeiture, 15 FCC Rcd 19095 (EB 2000)
    (forfeiture paid); *Citicasters Co. (KSJO(FM)),* Notice of Apparent
    Liability for Monetary Forfeiture, 15 FCC Rcd 19091 (EB 2000)
    (forfeiture paid).

[^55]: The forfeiture amount proposed against each station of each Clear
    Channel subsidiary is allocated on the basis of three indecency
    violations per station, and \$27,500.00 per violation, for a total
    of \$82,500.00 (3 x \$27,500.00) per station.

[^56]: 47 C.F.R. § 1.80.

[^57]: 47 C.F.R. § 1.80.

[^58]: 47 C.F.R. § 1.80.

[^59]: *See* 47 C.F.R. § 1.1914.

[^60]: Consistent with section 503(b) of the Act and consistent
    Commission practice, for the purposes of the forfeiture proceeding
    initiated by this *NAL*, Clear Channel and its subsidiaries Clear
    Channel Broadcasting Licenses, Inc., Citicasters Licenses, L.P. and
    Capstar TX Limited Partnership, shall be the only parties to this
    proceeding.