**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. EB-00-IH-0261

Citicasters Co. ) NAL/Acct. No. 200132080027

) Facility ID #18114

Licensee of Station KEGL(FM), )

Fort Worth, Texas )

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: March 30, 2001** **Released: April 3, 2001**

By the Chief, Enforcement Bureau:

## I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that Citicasters Co. ("Citicasters"), licensee of Station KEGL(FM),
Fort Worth, Texas, has apparently violated 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, by willfully and repeatedly broadcasting indecent
language. Based on our review of the facts and circumstances in this
case, we conclude that Citicasters is apparently liable for a forfeiture
in the amount of fourteen thousand dollars (\$14,000).

# 

# II. BACKGROUND

2\. The Commission received a complaint dated August 6, 2000, concerning
broadcasts that aired on KEGL on May 30, May 31, August 1 and August 3,
2000. The complaint included transcripts and pictures taken from the
station's website. Review of the complaint revealed that the May 30
broadcast occurred at 11 p.m., while the August 1 broadcast did not
appear to raise a *prima facie* question of actionable indecency.
However, because the May 31 and August 3 broadcasts contained apparently
indecent material and aired between 7 p.m. and 10 p.m., we issued a
letter of inquiry to the licensee.

3\. In its response, Citicasters asserts that it cannot verify whether
the material aired. However, the licensee does acknowledge that it
admonished "Kramer and Twitch," the hosts of the programs in question,
following one of their shows in late May or early June because
management believed that certain material may have been inappropriate
for the station's audience. With respect to the August 3 broadcast,
Citicasters argues that the material allegedly aired was not indecent.
Citicasters submits that, at worst, the material includes a "few
scattered and vague references of a sexual nature, ... \[which\] are
neither explicitly graphic nor pandering." Citicasters claims that it
has a formal policy prohibiting the broadcast of indecent material; that
KEGL's management routinely advises the station's on-air staff of the
policy; and that it "vigilantly" monitors the station's broadcasts for
compliance. Citicasters also notes that, beginning in December 2000,
KEGL began airing the "Kramer and Twitch" program on a 12-hour delayed
basis. Citicasters explains that, currently, the program is taped in San
Jose, California, and then reviewed and edited by KEGL personnel prior
to being broadcast by the station. In addition, KEGL regularly airs a
message both before and after the "Kramer and Twitch" show, which
notifies listeners that the program may contain material "more suitable
for adults."

**III. DISCUSSION**

4\. Section 503(b)(1) of the Communications Act (the "Act"), 47 U.S.C. §
503(b)(1), provides in pertinent part:

> Any person who is determined by the Commission, in accordance with
> paragraph (3) or (4) of this subsection to have \-\--
>
> ...
>
> \(D\) violated any provision of section 1304, 1343, or 1464 of title
> 18, United States Code;
>
> shall be liable to the United States for a forfeiture penalty.

18 U.S.C. § 1464 provides criminal penalties for anyone who "utters any
obscene, indecent or profane language by means of radio communication."
As explained below, we believe that language broadcast during the May 31
and August 3 programs of "Kramer and Twitch" was indecent and that the
licensee's broadcast of that material was willful.

5\. The Commission has defined indecent speech as language that, in
context, depicts or describes, in terms patently offensive as measured
by contemporary community standards for the broadcast medium, sexual or
excretory activities or organs. *Infinity Broadcasting Corporation of
Pennsylvania*, 2 FCC Rcd 2705 (1987) (subsequent history omitted)
(*citing* *Pacifica Foundation*, 56 FCC 2d 94, 98 (1975), *aff'd sub
nom*. *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). The
Commission's authority to restrict the broadcast of indecent material
extends to times when there is a reasonable risk that children may be in
the audience. *Action for Children's Television v. FCC*, 852 F.2d 1332
(D.C. Cir. 1988). Current law holds that such times begin at 6 a.m. and
conclude at 10 p.m. *Action for Children's Television v. FCC*, 58 F.3d
654 (D.C. Cir. 1995), *cert. denied*, 116 S.Ct. 701 (1996). Thus, to be
actionably indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and before 10 p.m.
*See* 47 C.F.R. § 73.3999.

6\. After carefully considering the record before us, it appears that
Citicasters has willfully and repeatedly violated our indecency rule.
Citicasters does not deny that it broadcast the language in question
before 10 p.m. The May 31 broadcast contains dialogue between the hosts
and a teenage female caller, wherein, among other things, the hosts and
the caller discuss bisexuality and masturbation, and the hosts attempt
to have the caller masturbate during the course of the conversation. The
tone of the conversation is pandering and titillating in that the hosts
persistently inquire about the caller's frequency and methods of
masturbation, and they assert that the caller's father masturbates
despite his apparent disapproval of her doing so. As for the August 3
broadcast, we disagree with Citicasters' contention that indecent
language was not aired. That broadcast features a conversation between
the hosts and an adult film actor and actress. Among other things, they
discuss whether the actor's girl friend is bisexual, whether the actress
enjoys anal sex, and whether the actress will perform a sexual act on
one of the hosts whose penis is "uncut." Once again, the tone of the
conversation is pandering and titillating. It appears that both
broadcasts were indecent in that they contain patently offensive
descriptions of various sexual activities.[^1] The licensee's stated
policy against the broadcast of indecent material apparently had no
impact on the airing of the cited material, and its current procedures
for editing "Kramer and Twitch" and advising audiences about its content
have no bearing on whether a forfeiture should be imposed. *See Station
KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

7\. Section 503(b) of the Act and 47 C.F.R. § 1.80 both state that any
person who willfully or repeatedly fails to comply with the Act or the
Commission's rules shall be liable for a forfeiture penalty. For
purposes of 47 U.S.C. § 503(b), the term "willful" means that the
violator knew that it was taking the action in question, irrespective of
any intent to violate the Commission's rules.[^2] As explained above,
Citicasters knew that it was broadcasting "Kramer and Twitch" and each
of the cited segments. In assessing a forfeiture, we take into account
the nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and such other matters as justice may
require.[^3]

8\. The Commission's *Forfeiture Guidelines* set a base forfeiture
amount of \$7,000 for transmission of indecent/obscene materials.[^4]
After considering all the facts and circumstances, we believe the base
forfeiture amount is the appropriate sanction for each of the two
violations described above and that neither an upward nor downward
adjustment should be made.

**IV. ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 503(b), and
47 C.F.R. §§ 0.111, 0.311 and 1.80, Citicasters Co. is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of fourteen
thousand dollars (\$14,000) for willfully and repeatedly violating 18
U.S.C. § 1464 and 47 C.F.R. § 73.3999.

10\. IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. § 1.80, within
thirty days of this NOTICE OF APPARENT LIABILITY, Citicasters Co. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.

11\. Payment of the forfeiture may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced above.

12\. The response, if any, must be mailed to the Charles W. Kelley,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 3-B443,
Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced
above.

13\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the respondent's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.

14\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.[^5]

15\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
Citicasters Co., c/o Kenneth E. Wyker, General Counsel, Clear Channel
Communications, Inc., 200 East Basse Road, San Antonio, Texas
78209-8328; with a copy to Elizabeth E. Goldin, Esq., Wiley, Rein &
Fielding, 1776 K Street, N.W., Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

### ATTACHMENT

Radio Station: KEGL(FM), Fort Worth, Texas

Date/Time Broadcast: (1) May 31, 2000 at 9 p.m.; (2) August 3, 2000
between 7:45 p.m. -- 9:15 p.m.

Material Broadcast: (1) Telephone conversation; (2) Interview and
commentary

\(1\) May 31, 2000 (9 p.m.)

MV: Male Voice(s) (Hosts)

FV: Caller

Boy: Caller's brother

MV: So you say you're 17 and your parents won't let you listen to us?
Huh?

FV: Yeah, because my dad is like a bishop in my church, and so he thinks
you guys are evil.

MV: Are you really 17? What year were you born?

FV: 1983.

MV: I guess that's right. Well, 17, technically, is the legal age of
consent. So you really don't need his permission to listen to a radio
show.

FV: True. But I still live under his house and so he could kick me out.

MV: What does he say about the show that he doesn't like?

FV: He says it will put evil thoughts in my head and stuff.

MV: What kind of evil thoughts do we put in your head? Have you been
thinking about sex?

FV: Well, you guys had that girl on who like wanted to get off on
another girl.

MV: Did that turn you on? Any of that?

FV: Yeah.

MV: Do you think you're bi-sexual in any way?

FV: Maybe. And that's why he doesn't like it.

MV: Are you a virgin? Yes?

FV: Yeah.

MV: So your dad blames us. And you may be bi-sexual, right?

FV: He doesn't say that, but he says that the whole pre-marital sex
thing is evil.

MV: Of course. Of course, he thinks that. You should be able to make
your own decisions. You're 17 years old, and if you wanted to have sex
with one of us you could do that legally. We could have sex with you.
And I think we should just because of her father.

How many times a week do you masturbate? How many times?

FV: Probably about four or five.

MV: How do you do it?

FV: It's private.

MV: Do you put your finger in or do you move it around? Do you use a
vibrator? Where do you masturbate? In the shower?

FV: In my room, usually.

MV: How do you do it?

FV: I get on my back and start touching myself.

MV: How? It's okay. Really, you can tell us. Do you ever touch yourself
through your panties? You know, just on the outside to get yourself
revved up. Describe the whole thing. I want to hear it. Just tell me
little details. First of all, tell me, do you shave?

FV: Yes, but that's because my cousin taught me how to.

MV: Who taught you how? Is it a female or a guy?

FV: Well, she told me you kind'a have to because when guys are down
there they don't want to ... so.

MV: So it's shaved and bald. What do you do when you masturbate? Ah,
this is turning me so on. Who do you think about?

FV: I do it like under the water thing.

MV: In the bathtub? Do you do that?

FV: It was really ...

MV: Nice? What do you sound like when you have an orgasm? Moan?

FV: Hmm. Well, actually quiet so that my parents don't hear.

MV: Your father would get mad if he thought you were masturbating?

FV: He walked in on me one time.

MV: Oh, God! What I would do to walk in on you masturbating, no doubt!
What did he do to you?

FV: He made me read every single Scripture that ....

MV: What do you look like, sweetie?

FV: Tall, thin.

MV: How much do you weigh?

FV: Probably 145.

MV: So what do the Scriptures say about masturbating?

FV: He gave me the one about David and Bathsheba. He had unclean
thoughts about her bathing. And then he goes into the book of Romans.

MV: Can I tell you something about your dad real quick, honey? And I am
going to be painfully honest. He's been whacking off since he was 12
years old. Yes he has. He does it every single night whether he has sex
with your mom or not. He thinks about other women besides your mom.

FV: I know that my father and mom still do because she's been pregnant
recently.

MV: So he still masturbates. A guy always masturbates. So how do you
feel when we tell you your dad masturbates? Is that gross?

FV: I don't want to think about that.

MV: He's probably twisting them off in the bathroom right now.

Have you every kissed a girl?

FV: No.

MV: Have you every wanted to?

FV: Yeah.

MV: When you are hanging out with your girlfriends, have you ever
fantasized about going back to their house and having a sleepover?

FV: My freshman year in high school there was a girl who told me she
liked me, and we were going to have a sleepover but my dad met her ....

MV: That son-of-a-bitch! That bastard! That a-hole!

Do you have a car?

FV: On the weekends.

MV: Tell you what. We'll let you come up here, and we'll find a really
attractive woman that you can sleep with.

Would you masturbate in front of us?

FV: Uhm, I don't know.

MV: Why not? You're 17. That's not crazy! You're totally legal. I think
we could get you up here. I think we can get you to buzz your beaver in
front of us.

FV: I've never even like French-kissed a guy.

MV: Oh well, of course, we'll take care of that! We'll do that for the
first time here. We will corrupt you, baby! Hmmm. You won't even want to
go home after this. You know what? You will be tearing pages out of your
daddy's Bible. You're 17. You'll be smoking them! You're 17. You're
legal. You can do whatever you want.

Are you a little turned on right now?

FV: Well, yeah.

MV: Would you masturbate on the phone for us?

FV: I don't know.

MV: Just do it a little bit. Now, we are going to turn off the
microphone and be real quiet. We want to hear you moan. Go ahead. Go
ahead.

FV: I'm going to be embarrassed.

MV: Go ahead, baby. Don't worry. It's kind of erotic. The mikes are off.

FV: I like quietly whimper.

MV: That's cool. Just do it, and we're turning the mikes off right now.

FV: Okay. Bye-bye.

Colt, are you on the phone?

Boy: Hello. Yeah.

FV: Get off the phone!

MV: Oh my God! Hey, Kenneth, are you the brother?

Boy: Uh-huh.

MV: Do you ever watch her at night while she's masturbating?

FV: Don't say that!

Boy: Do what?

FV: Don't say that! Don't say that!

MV: God \[bleep\] son-of-a-bitch! Whore! \[Beep\] sucker! She's dogging
her vagina every single night with your dad's flashlight!

FV: Hang up the phone!

MV: God \[beep\]! God \[beep\]! You're going to hell! You're a sinner! I
can't believe you're pregnant, you bitch! You're a whore!

FV: Hang up the phone!

Boy: What kind of \[unintelligible\] is this?

MV: \[Laughter\]

Announcer: Extreme night-time radio with Kramer and Twitch on 97.1, the
Eagle.

\(2\) August 3, 2000 (7:45 p.m. to 9:15 p.m.)

MV: Male Voice(s) (Hosts)

MV2: Adult-film actor (Carlos)

FV: Adult-film actress (Gina)

MV3: Hosts' assistant (Frat)

MV: Carlos is on the way and porno chicks.

...

MV: We also have Gina Rider. She's a porn star. She's going to be
performing at the Clubhouse.

9:30 your first show, right?

FV: Yes, and midnight.

MV: You've done a couple hundred adult films, almost 200. You're from
San Antonio. You've got a boyfriend?

FV: Nooooooooo.

MV: Are you having sex with us?

FV: Who?

MV: If she says no, it's a joke. If she says yes, let's do it!

MV: So, Carlos, you're on the road all the time, especially with this
tour. How's your sex life?

MV2: Great! It really is, dude.

MV: Carlos, I know you, and you're so business-minded. You don't drink.
I bet you don't bang chicks on the road.

MV2: No, I don't.

MV: Do you have a girlfriend?

MV2: Remember that tall blonde, thin chick?

MV: Is she hot?

MV2: Unbelievable, dude!

MV: Is she Mexican?

MV2: No. She's a white girl from Oregon.

MV: Traitor!

MV2: Traitor? What are you talking about, dude?

MV: It's still pink in the middle.

MV2: Exactly!

MV: You are faithful to her?

MV2: Yeah. I may talk a lot of smack, dude, but you know.

MV: Is she faithful to you?

MV2: I have no idea, dude.

MV: Wait. Now is a blow \[beep\] cheating?

MV2: I tell her this. If you cheat on me, and it's a mistake, just don't
tell me.

MV: A mistake? I fell on a penis. It slipped and fell in ....

MV2: If she slips and falls into a pair of hairy \[beep\]. Just ignore
it. I don't need that phone call.

MV: Is she in town now? Is she touring with you?

MV2: She usually comes. She took this week off.

MV: Are you coming with us tonight? We're going to the Clubhouse
tonight.

MV2: Of course. I'm getting in trouble. She has friends here who are
listening in to the show, and I am going to get a phone call.

MV: Does she get angry when you go to a boob bar?

MV2: I don't know. Sometimes.

MV: Is she jealous?

MV2: Sometimes. But she's freaky, though. She fulfills those, like, you
know ....

MV: Threesomes?

MV2: She does some crazy stuff, dude.

MV: Is she bi? Does she monge?

MV2: No, no, no. She don't do that. It's hard enough to please one chick
to do it well. Am I right? Hard enough to really please you and make you
feel like .... I'm talking about in real life.

MV: You've even said it on your tape before. Why is it when a woman
doesn't have an orgasm, why is it my fault? It's not your fault! It's
not your fault, Carlos. Come on!

MV2: I know it's not my fault. But what I'm saying is it's hard to
please one woman.

MV: That's what the other bitch is for, Carlos!

MV2: Yeah, but then the talk after. It's like bitch in stereo! Oh my
God, you didn't do it right! And what about my left boob? I would just
kill myself, dude.

MV: We're going to talk to Gina Rider. Keep it on the Eagle.

\[Music\]

MV: What do you look like, girl? You are gorgeous, girl! Oh my God! She
sneezed and her boobs popped out. She just said, "I'm going to get
naked." You can take off that dress if you want.

MV2: Very nice booty, man. And she says she enjoys the back door action.

MV: Oh, you do?

FV: I love it!

MV: For the first time? You just had your first back door?

FV: No. I've been doing it in my personal life for about a year now. But
I just did my first scene on camera like two months ago. It was great!

MV: We're going to come back and see what happens here in the studio.
Mmm, mmm, mmm, delicious!

...

MV: Who give a crap! Frat boy is in his boxers right now. I have a
feeling something is going to go down in here. Are you willing to get
naked, Frat? Take them off.

MV3: I am not getting all the way butt naked. I can't do that.

MV: None of us guys want to see your peepee. And she's seen tons of
them. I've got one, man. Come on!

MV2: I'll pull it out just so you feel comfortable.

MV: Frat, you'll go and whip it out in a bar and go and talk to people
with your peepee out.

MV3: But I am usually like lit, dude, when I am doing that.

MV: Puss, puss, puss!

MV2: I'll pull it out, and mine's got a hood on it. How bad could yours
be?

MV: \[To FV\] Cut or uncut, how do you like them?

FV: I've been playing with cut, uncut, lately. I've always had cut, and
my \[beep\] buddy's uncut.

MV3: I'm uncut, baby! I've got a chance!

MV: I want to ask her to have sex with me, but I'm not in front of you
because you're going to mess it up. She might say, "Yeah." But you, my
friend, would screw it up!

O.K., so get naked, Gina.

MV2: Dude! What is wrong with you, bro?

MV: I just don't want someone that looks like you to sleep with her.
Look at her. She is phenomenonally gorgeous. It would hurt my feelings.

MV2: Ah, poor fatso!

FV: We're all hanging out tonight, right?

MV: All right, Gina. Your new flick is "Skin Tight," and you are 23, and
you've been doing porno since you were how old?

FV: 21.

MV: So, will you demonstrate on Frat? You know, wrestlers have moves and
stuff. Porno stars have got to have something that they do that makes
them special. Frat, get naked!

Do you have some kind of signature move that is yours like ...

\[To Frat\] Grab your ankles and like take off your pants. Don't be a
pud! Get naked!

MV3: Who's going hold the mike?

MV2: That's not your problem, dude. You're a big fat puss!

MV: You're going to get naked in front of a porn star.

MV2: What are you afraid of? She's like a doctor. She's seen it.

MV: Gina, how far would you go with Frat in here? He's a pretty good
looking guy. Nothing he's got is going to compare to anything you've
seen before. Nothing. We've seen it.

FV: I've got to see what he looks like.

MV: Take it off, Frat! Take it off!

MV2: Did you see that look of horror?

....

[^1]: *See, e.g.,* *Citicasters Co. (WXTB(FM))*, 13 FCC Rcd 15381 (Mass
    Media Bureau 1998). *See also* *Regent Licensee of Flagstaff, Inc.
    (KZGL(FM))*, 15 FCC Rcd 17286 (Enforcement Bureau 2000).

[^2]: *See* *Jerry Szoka*, 14 FCC Rcd 9857, 9865 (1999); *Southern
    California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^3]: 47 U.S.C. § 503(b)(2)(D). *See also* *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087, 17100-01
    (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Forfeiture
    Guidelines*").

[^4]: *Forfeiture Guidelines*, 12 FCC Rcd at 17113.

[^5]: *See* 47 C.F.R. § 1.1914.