**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

# In the Matter of ) 

)

**REGENT LICENSEE OF** ) Case No. 99090142

# **FLAGSTAFF, INC.** ) NAL/Acct. No. X32080029

) Facility #51642

Licensee of Station KZGL(FM), ) JJS

Cottonwood, Arizona )

)

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: September 6, 2000 Released: September 7, 2000**

By the Chief, Enforcement Bureau:

### I. Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find Regent
    Licensee of Flagstaff, Inc. ("Regent"), licensee of Station
    KZGL(FM), Cottonwood, Arizona, apparently liable for a six thousand
    dollar (\$6,000) forfeiture for an apparent violation of 18 U.S.C. §
    1464 and Section 73.3999 of the Commission's rules, 47 C.F.R. §
    73.3999, by broadcasting indecent material.

### II. Background

2.  The Commission received complaints concerning a broadcast on
    KZGL(FM) on August 28, 1999. At issue was a remote broadcast from
    Images Video, an adult video store in Flagstaff, Arizona. According
    to the complainants, during this remote broadcast, the station
    interviewed "Mila Shegol, Queen of the Nasty," an adult film
    actress. During the interview, Ms. Shegol solicited listeners to
    come down to the station for free oral sex. The complaints also
    stated that she said she liked to "suck c-o-c-k" and that anyone
    coming to the event could "stick it in my a-s-s." According to one
    complaint, she described herself as a "healthy vessel for swallowing
    s-e-m-e-n" and described her "tongueing techniques."

3.  By letter dated June 8, 2000, we requested Regent to comment on the
    complaint. Regent filed its response on July 31, 2000. In its
    response, Regent admits that it conducted a remote broadcast from
    the Images Video store on August 28, 1999 and that "inappropriate"
    material was aired during that broadcast. Regent explains that Rowdy
    Walker, the station's Program Director, Elizabeth Walker, a disc
    jockey (and Mr. Walker's wife), and a salesman named Ryan conducted
    the remote broadcast. The remote broadcast lasted from 5:00 p.m. to
    8:00 p.m., and each hour consisted of three live remote segments of
    approximately two minutes in length. Regent states that during the
    remote broadcast, at the request of the video store, the Walkers
    agreed to interview Ms. Shegol on the air. Ms. Walker states that
    prior to placing Ms. Shegol on the air, she told Ms. Shegol "in
    specific terms the sort of subject matter and language that should
    be avoided." Ms. Walker reviewed a script from Ms. Shegol's promoter
    that listed talking points such as the location of the new store, a
    description of a charity fundraiser, and a telephone number where
    Ms. Shegol's new video could be ordered. At 7:33 p.m., Mr. Walker
    began the interview with Ms. Shegol. The station used cell phones to
    conduct remote broadcasts, so Mr. Walker called the station, and
    Brian Allen, who was the disc jockey on duty, patched the call
    through on the air. Mr. Walker introduced Ms. Shegol and then handed
    the cell phone to her. According to Regent, at first, Ms. Shegol
    discussed the store and her new video. Then, Ms. Shegol "began to
    allude to sexual topics." Mr. Walker states that he attempted to
    take the cell phone from Ms. Shegol, but her "promoter" prevented
    him from doing so. According to Mr. Allen, while he recognized that
    Ms. Shegol was using "sexual innuendo," he thought Mr. Walker, his
    superior, had made the judgment to keep her on the air. Mr. Allen
    states that when "she uttered a sentence, in which she explicitly
    and unmistakably referred to a sex act," he shut her off the air.
    Mr. Walker estimates that the entire broadcast with Ms. Shegol
    lasted two minutes, and that "no more than 30 seconds" elapsed from
    the time she "got vulgar" to the time she was cut off.

4.  Mr. Walker apologized on the air during the next remote broadcast.
    Mr. and Ms. Walker also apologized on Monday morning during their
    regular morning show. As a result of this incident, Jay Mlazgar,
    KZGL(FM)'s General Manager, instituted a policy that, except for
    station personnel, emergency workers, and government officials, all
    conversations must be pre-recorded.

### III. Discussion

5.  Section 503(b)(1)(D) of the Act provides in pertinent part:

> Any person who is determined by the Commission, in accordance with
> paragraph (3) or (4) of this subsection, to have\-\-- 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.

Pursuant to 47 U.S.C. §§ 312(a)(6) and 503(b)(1)(D), the Commission has
statutory authority to take appropriate administrative action when
licensees broadcast material in violation of 18 U.S.C. § 1464, which
provides criminal penalties for anyone who \"utters any obscene,
indecent or profane language by means of radio communication.\"

6.  The Commission has defined indecency as language or material 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)
    (citing *Pacifica Foundation*, 56 FCC 2d 94, 98 (1975), *aff'd sub
    nom.* *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). The United
    States Court of Appeals for the District of Columbia Circuit has
    upheld the Commission\'s authority to restrict the broadcast of
    indecent material at 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). The court
    subsequently concluded that a 10:00 p.m. to 6:00 a.m. \"safe
    harbor\" was justified as a properly tailored means of vindicating
    the government\'s compelling interest in the welfare of children.
    *Action for Children's Television v. FCC,* 58 F.3d 654 (D.C. Cir.
    1995), *cert. denied*, 116 S. Ct. 701 (1996).

7.  Regent argues that it is unclear that there was a violation because
    the Commission "has never promulgated specific indecency rules or
    even guidelines." In *Citicasters Co. (WXTB(FM))*, 15 FCC Rcd 11906
    (2000), the Commission rejected a similar argument, noting that
    "\[t\]he Commission\'s 'definition of indecency has remained
    unchanged for years, and in rulemaking proceedings as well as in the
    context of specific rulings, we have amply illustrated what
    broadcasters may and may not do.'" *See* *WQAM License Limited
    Partnership (WQAM(AM))*, 15 FCC Rcd 2518, 2519 (2000). Moreover, Ms.
    Shegol's comments clearly appear to be indecent because they contain
    language that describes sexual and/or excretory activities or organs
    in patently offensive terms. Because the material aired at around
    7:30 p.m., when there was a reasonable risk that children may have
    been in the audience, it is legally actionable. Thus, it appears
    that on August 28, 1999, Station KWGL(FM), violated 18 U.S.C. § 1464
    by airing indecent programming.

8.  Section 503(b) of the Act, 47 U.S.C. § 503(b), and Section 1.80(a)
    of the Commission's rules, 47 C.F.R. § 1.80(a), both state that any
    person who willfully or repeatedly fails to comply with the
    provisions of the Act or the rules shall be liable for a forfeiture
    penalty. For purposes of Section 503(b) of the Act, the term
    "willful" means that the violator knew it was taking the action in
    question, irrespective of any intent to violate the Commission's
    rules. *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

9.  The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^1] 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." *See* 12 FCC
    Rcd at 17110. In this case, Regent argues that the broadcast was
    "unintentional" and that Regent has a "superb record of FCC
    compliance." While Regent may not have intended to broadcast the
    material in question, we believe that given the fact that the
    station was interviewing an adult movie actress at an adult video
    store, it failed to take adequate precautions to ensure that
    inappropriate material was not aired. The station did not use a
    delay mechanism, and it appears that some time passed between the
    time Ms. Shegol started making explicit sexual references and the
    time Mr. Allen finally cut her off. In light of the licensee\'s
    record of compliance with the Commission\'s rules, however, we
    believe a downward adjustment is appropriate. After reviewing all of
    the circumstances, we believe a \$6,000 forfeiture is appropriate in
    this case.

#### IV. Ordering Clauses

10. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311,
    and 1.80 of the Commission's rules,[^2] that Regent Licensee of
    Flagstaff, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of six thousand dollars (\$6,000) for
    willfully violating 18 U.S.C. § 1464 and Section 73.3999 of the
    Commission's rules.

11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that within thirty days of the release of this Notice, Regent
    SHALL PAY to the United States the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

12. 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.

13. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the file number listed above.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    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
    petitioner'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.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief, Credit
    and Debt Management Center, 445 12th Street, S.W., Washington,
    D.C. 20554. *See* 47 C.F.R. § 1.1914.

16. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Regent's counsel, Kevin
    Boyle, Esq., Latham & Watkins, 1001 Pennsylvania Avenue, N.W.,
    Washington, D.C. 20004-2505.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Commission's Rules*, 12 FCC Rcd 17087, 17113
    (1997) recon. denied, 15 FCC Rcd 303 (1999) (*Forfeiture Policy
    Statement)*.

[^2]: 47 C.F.R. § 0.111, 0.311 and 1.80.