**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. EB-02-IH-0261

) NAL Acct. No. 2004 3208 0011

**CLEAR CHANNEL BROADCASTING** ) FRN \# 0001587971

**LICENSES, INC**. )

)

Licensee of Stations )

WPLA(FM), Callahan, Florida ) Facility ID \# 51975

WCKT(FM), Port Charlotte, Florida )

(Formerly Station WRLR(FM)) ) Facility ID \# 35213

)

**CITICASTERS LICENSES, L.P.** ) FRN \# 0003017423

)

Licensee of Station )

WXTB(FM), Clearwater, Florida ) Facility ID \# 11274

)

**CAPSTAR TX LIMITED PARTNERSHIP** ) FRN \# 0003474947

)

Licensee of Station )

WRLX(FM), West Palm Beach, Florida ) Facility ID \# 20442

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: January 26, 2004** **Released: January 27, 2004**

By the Commission: Chairman Powell, Commissioners Martin and Adelstein
issuing separate statements; Commissioner Copps dissenting and issuing a
separate statement.

## 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 indecent material over
    the captioned stations during the July 19, November 14, 19, 26 and
    27 and December 27, 2001, broadcasts of the "Bubba the Love Sponge"
    program. Furthermore, we find that they each appear to have failed
    to maintain copies of certain required documents in the public
    inspection files of each of their respective captioned stations, in
    apparent willful violation of Section 73.3526(e)(10) of the
    Commission's rules.[^2] Based on the totality of the evidence before
    us and Clear Channel's history of transgressions relating to the
    broadcast of indecent material over stations licensed to its
    subsidiaries, we conclude that Clear Channel is apparently liable
    for a monetary forfeiture in the amount of Seven Hundred Fifty-Five
    Thousand Dollars (\$755,000), the statutory maximum of \$27,500 each
    for 26 indecency violations (\$715,000), and the base amount of
    \$10,000 each for four public file violations (\$40,000).

**II. BACKGROUND**

2.  This proceeding arises out of a series of formal complaints filed on
    behalf of Douglas Vanderlaan against Clear Channel alleging: (1)
    indecency violations; (2) public inspection file violations; (3)
    improper intimidation by Clear Channel against the complainant;
    and (4) the promotion and glorification of the use of illegal drugs
    in Clear Channel's broadcasts and on its web site.[^3] The
    Enforcement Bureau (the "Bureau") issued a series of letters of
    inquiry[^4] and the record includes responses by Clear Channel[^5]
    and by the complainant, to Clear Channel's responses.[^6]

**III. DISCUSSION**

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

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

4.  As an initial matter, we find that all of the seven segments at
    issue in this NAL were broadcast during this prohibited time period,
    at the time of day and on the specific dates alleged by Mr.
    Vanderlaan in his *First Complaint*, [^10] albeit not by all four of
    the captioned stations. In this regard, Clear Channel has
    acknowledged that segments 1, 2 and 7 were indeed broadcast, and
    that the transcripts for these segments submitted by Mr. Vanderlaan
    are accurate. [^11] Clear Channel states that it did not retain
    audio recordings or transcripts of its own for the broadcasts
    encompassed by the remaining three segments, segments 3, 4, 5 and 6.
    Consequently, as to those segments, Clear Channel refuses to "admit
    or acknowledge that the material in the transcripts provided by Mr.
    Vanderlaan aired as he alleges."[^12] However, based upon the
    evidence before us, including Clear Channel's failure to refute
    adequately Mr. Vanderlaan's allegations, we find that Segments 3, 4,
    5 and 6 were also broadcast at the time and on the dates indicated
    in the *First Complaint*, and that the transcripts for those
    segments accurately depict those broadcasts.[^13] Clear Channel
    concedes that Stations WXTB(FM), WRLX(FM) and WPLA(FM) regularly
    aired the "Bubba the Love Sponge" program during the entire period
    of time encompassed by all seven segments and does not claim that
    any of the stations edited the show. Consequently, we find that
    Stations WXTB(FM), WRLX(FM) and WPLA(FM) broadcast all seven of the
    segments, as alleged. Clear Channel, however, represents that
    Station WCKT(FM) did not begin carrying the "Bubba the Love Sponge"
    program until October 29, 2001.[^14] Because segments 1 and 2 were
    broadcast before WCKT(FM) commenced airing the program, we find that
    the station broadcast only segments 3 through 7.

5.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^15] 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.[^16]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands that, in indecency determinations, we
    proceed cautiously and with appropriate restraint.[^17]

6.  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.[^18]

> 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.[^19]

7.  As an initial matter, all of the seven program segments, in one
    manner or another, unquestionably involved on-air discussions
    relating to descriptions or depictions of sexual organs, excretory
    organs and/or activities of a sexual nature. The broadcasts involved
    conversations about such things as oral sex, penises, testicles,
    masturbation, intercourse, orgasms and breasts. Clear Channel does
    not dispute that the broadcasts involved such descriptions or
    depictions.[^20] Accordingly, we conclude that each of the segments
    that were broadcast satisfies the first prong of our indecency
    analysis.

8.  Having satisfied the first prong, we now turn to an analysis of
    whether the material in the seven segments subject to this NAL
    satisfies the second prong of the Commission's two-part indecency
    analysis -- that is, whether the broadcasts were patently offensive
    as measured by contemporary community standards for the broadcast
    medium.[^21] In our assessment of whether broadcast material is
    patently offensive, "the *full context* in which the material
    appeared is critically important."[^22] 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.[^23] 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."[^24] In particular cases, the weight of one or two of the
    factors may outweigh the others, either rendering the broadcast
    material patently offensive and consequently indecent,[^25] or,
    alternatively, removing the broadcast material from the realm of
    indecency.[^26]

9.  We turn now to an analysis of these factors as they relate to each
    segment,[^27] to determine whether the material that was broadcast,
    taken in context, is patently offensive as measured by contemporary
    community standards for the broadcast medium.

> [Segment 1 (aired July 19, 2001 between 6:30 and 8:30
> a.m.)]{.underline}:[^28] In this segment,[^29] skits in which the
> voices of purported cartoon characters talk about drugs and sex are
> inserted between advertisements for Cartoon Network's Friday night
> cartoons that are identified as "provocative adult cartoons to help
> you get your freak on." The first skit begins when Shaggy tells Scooby
> Doo that he needs crack cocaine but has no money to buy it. Scooby Doo
> responds that Shaggy could "su(bleep)ck d(bleep)ick" to pay for the
> drugs. In the next skit, Fat Albert, a/k/a Phat Diddy Daddy, gets
> killed in a drive-by shooting after bragging that Jennifer Lopez had
> been "s(bleep)ing Diddy Daddy's (bleep)ck the previous night. The
> third skit begins with the theme music from "The Jetsons" cartoon
> show. George Jetson then begins telling Jane that he no longer needs
> Viagra because he got a "Spacely Sprocket (bleep)ck ring." After
> George flips a switch to activate the device, sound effects indicate
> that the device malfunctions, and the skit ends with George calling
> for Jane to turn off the device. Next, Alvin the Chipmunk complains
> that he hasn't "been laid in almost six weeks." Another chipmunk
> responds that his problem is due to the "f(bleep)cking pussy music we
> play" and begins to sing a more "kick ass" song directing a "filthy
> chipmunk-whore" to "\[s\]uck on my (inaudible) Chipmunk (bleep)s,"
> "\[p\]ut 'em in your mouth and (bleep)uck 'em." He continues by
> singing "They taste like pistachios. They're warm and fuzzy. Suck my
> (bleep)." The song is interrupted by a final advertisement for
> "Cartoons with Balls."
>
> This segment contains sufficiently graphic and explicit references to
> sexual and excretory organs and activities to satisfy the first
> criterion of our contextual analysis. Such sexual references are found
> in each of the skits and are repeated throughout the segment,
> satisfying the second factor of our contextual analysis. Finally, the
> use of cartoon characters in such a sexually explicit manner during
> hours of the day when children are likely to be listening is shocking
> and makes this segment patently offensive. It is foreseeable that
> young children would be particularly attentive listeners to this
> segment because of the character voices and the cartoon theme music
> used in the segment. The calculated and callous nature of the
> stations' decision to impose this predictably offensive material upon
> young, vulnerable listeners is particularly compelling and weighs
> heavily in our analysis. Thus, the segment also satisfies the third
> factor of our contextual analysis. Consequently, this segment is
> apparently indecent.
>
> [Segment 2 (July 19, 2001, between 6:30 and 8:14 a.m.):]{.underline}
> In this segment,[^30] a male applicant for a job as an underwear model
> calls the model search hotline and describes his as the "perfect
> penis," so gorgeous that "\[e\]very f(bleep)ing, every \-- every ounce
> of f(bleep)cking co(bleep) purple (inaudible) of it" "should be
> hanging in the f(bleep)cking Louvre," and so strong that it can lift a
> 25-pound weight and can split his pants like the Incredible Hulk. Such
> vivid descriptions of the caller's penis satisfy the first criterion
> of our contextual analysis. The entire segment discusses the man's
> penis, and graphic descriptions of it are referenced throughout the
> segment. Thus, the second criterion of the contextual analysis is also
> satisfied. The sole purpose of these vivid descriptions apparently is
> to shock and titillate listeners. Thus, the third criterion of our
> contextual analysis is satisfied. Because this segment repeats graphic
> and explicit descriptions of a sexual organ in an effort to titillate
> listeners, it appears to be patently offensive and indecent.
>
> [Segment 3 (November 14, 2001, between 7:00 and 8:55
> a.m.):]{.underline} In this segment,[^31] one of the men participating
> in the on-air discussion is Ned, a self-described "loud masturbator."
> He views the act of masturbating in public as a performance and states
> that he looks as though he's having a "grand mal seizure" when he does
> it. When asked to do so by the host, Ned, with increasing drum beat
> rhythms as an accompaniment, reenacts masturbating and reaching
> orgasm. Despite the use of euphemisms such as "wax\[ing\] your carrot"
> when referring to masturbation, and "sparky" when referring to a
> penis, the sexual references in the segment are unmistakable and
> sufficiently explicit to satisfy the first criteria of our contextual
> analysis. The entire segment dwells at length on masturbation. Thus,
> the second criterion of our contextual analysis is also satisfied.
> Finally, the participants' discussions of masturbating styles and
> techniques, and Ned's simulation of such a sex act, make it apparent
> that the segment was used to titillate and shock the program's
> listeners. In doing so, this segment satisfies the third criterion of
> our contextual analysis. Accordingly, we find that this segment
> appears to be patently offensive and indecent.
>
> [Segment 4 (November 19, 2001, between 8:00 and 9:00
> a.m.):]{.underline} In this segment,[^32] three males interview a
> female caller about her sexual exploits with "Spider," another man.
> They discuss the length of Spider's penis, the length of time their
> sexual encounter lasted, and the sexual techniques they used. After
> the caller indicated that she had given Spider oral sex, one host
> responded that he hoped Spider had not given her oral sex because
> heavier women, like her, have "some cheese down there." The hosts then
> began ridiculing the caller about her size and asked "Are you like a
> Ball Park Plank \-- Frank, you p\[l\]ump when we bang ya?" The
> conversation between the hosts and the caller was sufficiently
> explicit and graphic to convey unmistakably the sexual meaning of the
> euphemisms they used and to satisfy the first criterion of our
> contextual analysis. The participants talked at length about sexual
> and excretory activities and organs. It was apparent that the purpose
> of the call was to discuss the sexual organs and activities of the
> caller and Spider. As a consequence, the discussion dwelled upon the
> subjects of sexual organs and activities, and, thus, satisfies the
> second criterion of our contextual analysis. Finally, it is apparent
> that the discussion was titillating and shocking with respect to the
> audience. Thus, this segment meets the third and final criterion of
> our contextual analysis. As a consequence, we find that the segment
> appears to be patently offensive and indecent.
>
> [Segment 5 (November 26, 2001, between 7:00 and 9:00
> a.m.):]{.underline} In this segment,[^33] a male host and two male
> cohorts interview or talk with two female studio guests who are
> participants in a contest to win breast implant surgery. The host
> takes pictures of the women and directs and describes their poses,
> *e.g.*, directing one to let him "get a little more ass," in the
> picture and, later, to pose so that he can take a "front panty shot."
> A discussion of oral sex begins when the host tells Hillary, one of
> the women, that long fingernails like hers "feel so good on my boys,"
> and that his genital area is shaved. In response, Hillary states,
> "That's good. No \-- no hairs in the teeth and stuff." She then
> discusses her preference for giving, rather than getting, oral sex and
> declares herself to be a "big oral queen" who could "go a half-hour
> solid," before her "cheeks would hurt." She discusses her sexual
> escapades with two men, her inability to reach orgasm and her frequent
> masturbation. During the ensuing discussion the host encourages
> Hillary to masturbate on air while he watches and gives a "play by
> play." To encourage her to cooperate, he tells her that masturbating
> on air would increase her chances of winning breast implants and, when
> she continues to refuse, he proposes that he or the other female guest
> give her manual sex during the broadcast.
>
> The graphic and explicit descriptions of sexual or excretory organs
> and activities contained in this segment satisfy the first criterion
> of our contextual analysis. The repetition of these descriptions and
> other sexual references throughout the segment satisfy the second
> criterion of our contextual analysis. The continued and repeated
> explicit and graphic sexual references clearly demonstrate the
> shocking and titillating nature of the material, thus satisfying the
> third criterion of our contextual analysis. Consequently, we find that
> this segment appears to be patently offensive and indecent.
>
> [Segment 6 (November 27, 2001, between 7:30 and 9:00
> a.m.):]{.underline} In this segment,[^34] a male host and a co-host
> interview two female studio guests who are participants in the "Twelve
> Boobs of Christmas" contest to win breast implant surgery. The segment
> begins with the host taking pictures of the contestants' "boobs" in
> order to "facilitate you on some new boobies, baby." He then begins
> asking about their sexual activities and is impressed that one of the
> women, when giving "oral sex," does not "recycle," or "waste a drop."
> This segment is sufficiently explicit and graphic to meet criteria one
> of our contextual analysis. Because the sexual descriptions and
> references are repeated throughout the segment, criterion two of our
> contextual analysis is also satisfied. Finally, these sexual
> references and discussions appear to be inserted only to titillate the
> audience. Thus, criterion three of our contextual analysis is also
> met. Consequently, we find that this segment appears to be patently
> offensive and indecent.
>
> [Segment 7 (December 27, 2001, between 8:00 and 9:00
> a.m.):]{.underline} In this segment,[^35] Bubba and two male co-hosts
> discuss the abnormally large size of his "balls," while a singer and
> chorus sing about his testicles in explicit and graphic detail. The
> euphemism, "balls," is a common one, generally known to mean
> testicles, a sexual organ. Descriptions, such as those stating that
> Bubba's "balls," which are the size of "cantaloupes" or "coconuts,"
> are "firm and meaty" with "ingrown hairs," are sufficiently graphic to
> meet the first contextual criteria. Such descriptions are repeated at
> length during the entire segment, satisfying the second contextual
> criterion. Finally, the material satisfies the third criterion of our
> contextual analysis because it is pandering, titillating and shocking
> to the program's listeners. Thus, we find that this segment appears to
> be patently offensive and indecent.

10. Based on the foregoing, we find that the material that was broadcast
    in these seven segments satisfies the second prong of our two-part
    test and, thus, appear patently offensive, as measured by
    contemporary community standards for the broadcast medium. Because
    we have found these seven segments to have apparently satisfied both
    prongs of our two part test, we conclude that the material contained
    apparently indecent speech.

11. Each of the segments was broadcast between 6 a.m. to 10 p.m., at a
    time of day when the broadcast of indecent material is explicitly
    prohibited by Section 73.3999 of the Commission's rules. Because
    these segments appear to have contained indecent speech and were
    broadcast at times of the day when indecent speech is proscribed,
    each of the broadcasts appears to be legally actionable.[^36] We
    find, therefore, that three of the captioned stations (Stations
    WXTB(FM), WRLX(FM) and WPLA(FM)) each broadcast seven apparently
    indecent segments,[^37] in apparent willful and repeated violation
    of Title 18 U.S.C. § 1464 and Section 73.3999 of the Commission's
    rules. In addition, the fourth captioned station (Station WCKT(FM)),
    which began carrying the "Bubba the Love Sponge" program subsequent
    to the other stations, broadcast five of the apparently indecent
    segments (Segments 3, 4, 5, 6 and 7),[^38] also in apparent willful
    and repeated violation of Title 18 U.S.C. § 1464 and Section 73.3999
    of the Commission's rules.[^39]

**B. [Public Inspection File]{.underline}**

12. Section 73.3526(e)(10) of the Commission's rules requires broadcast
    licensees to maintain a public inspection file containing specific
    types of information. Section 73.3526(e)(10) specifies that, among
    the documents that must be included in the file, is "material having
    a substantial bearing on a matter which is the subject of an FCC
    investigation or complaint to the FCC . . ."[^40] Such material must
    be retained in a station's public inspection file pending written
    notification that it may be discarded.[^41] Where lapses occur in
    maintaining the public inspection file, neither the negligent acts
    nor omissions of station employees or agents, nor the subsequent
    remedial actions undertaken by the licensee, excuse or nullify a
    licensee\'s rule violation.[^42]

13. It is beyond dispute that, on August 22, 2001, each of the four
    captioned stations failed to include copies of documents relating to
    Mr. Vanderlaan's *First Complaint* in its public inspection file. In
    declarations accompanying the *Second Complaint*, Mr. Vanderlaan,
    Dr. David D. Swanson, Kathy Taunton and Sally Oesch each states
    that, on that date, he or she visited one of the captioned stations
    during normal business hours, reviewed its public inspection file,
    and determined that the file did not contain a copy of the *First
    Complaint* or any documents related to it.[^43] Although Clear
    Channel does not dispute these allegations, it argues that Station
    WXTB(FM) should be relieved of liability for its failure to have
    maintained the *First Complaint* in its public inspection file
    because a copy of the document was located elsewhere in the station
    after the requester had specifically identified and requested
    it.[^44] This argument lacks merit. The Commission requires that
    such documents be maintained in the public inspection file. [^45]
    The obvious intent of the rule is to facilitate public access to
    such documents. To require an individual member of the public to
    examine a station's public inspection file and then identify for
    station personnel what is missing from it clearly is inconsistent
    with the intent of the rule section.

14. Based on the information before us, we find that the captioned
    licensees at each of their respective captioned stations failed to
    maintain certain required documents in their respective public
    inspection files, in apparent willful violation of Section
    73.3526(e)(10) of the Commission's rules.

**C. [Other Allegations]{.underline}**

15. In his *First Complaint*, Mr. Vanderlaan alleges that Clear Channel
    engaged in intimidating and abusive conduct after he had filed his
    *First Complaint* with the Commission, by threatening him with legal
    action and complaining to his employer.[^46] A finding of
    "\[i\]ntimidation or harassment of witnesses requires threats of
    reprisals or some other unnecessary and abusive conduct reasonably
    calculated to dissuade a witness from continuing his or her
    involvement in a proceeding."[^47] In this case, Mr. Vanderlaan
    presents no evidence to corroborate his claim that Clear Channel
    contacted his employer and provides only a copy of his attorney's
    response to a letter purportedly from the attorney for Todd "Bubba"
    Clem (the host of the program) to corroborate his allegation that he
    was threatened with legal action by Clear Channel. In fact, Mr.
    Vanderlaan presents no evidence that the captioned licensees or
    Clear Channel made, or were even aware of, the contacts about which
    he complains. Consequently, there is insufficient evidence to
    support a finding that Clear Channel or the captioned licensees
    engaged in intimidation or abuse. Accordingly, we find no merit to
    this allegation.

16. In both his *First Complaint* and *Third Complaint and Supplement,*
    Mr. Vanderlaan alleges that Clear Channel promotes the use of
    illegal drugs.[^48] Consistent with the Commission's limited role
    overseeing programming content mandated by the First Amendment and
    Section 326 of the Act,[^49] there is no rule or statutory provision
    barring a licensee from airing material referencing drug use.[^50]
    Thus, the allegations concerning this material do not warrant
    enforcement action.

**IV. PROPOSED FORFEITURE**

17. Having determined that the captioned licensees apparently willfully
    and/or repeatedly violated 18 U.S.C. § 1464 and Sections 73.3999 and
    73.3526(e)(10) of the Commission's rules, we turn to an analysis of
    whether, and to what extent, we should propose sanctions in this
    instance. Under Section 503(b)(1) of the Act,[^51] 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.[^52] In order to impose such a 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
    penalty should be imposed.[^53] 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, regulation or
    order.[^54]

18. In the instant case, we have determined that three of the captioned
    stations (Stations WXTB(FM), WRLX(FM) and WPLA(FM)) each broadcast
    seven apparently indecent segments of the "Bubba the Love Sponge"
    program, in apparent willful and repeated violation of Title 18
    U.S.C. § 1464 and Section 73.3999 of the Commission's rules, and
    that the remaining captioned station (Station WCKT(FM)), which began
    carrying the "Bubba the Love Sponge" program after the other
    stations, broadcast five apparently indecent segments, in apparent
    willful and repeated violation of Title 18 U.S.C. § 1464 and Section
    73.3999 of the Commission's rules. Stated otherwise, we conclude
    that the captioned licensees apparently violated 18 U.S.C. § 1464
    and Section 73.3999 of the Commission's rules on a total of 26
    separate occasions. Consequently, based upon our review of the
    record in this case, we conclude that Clear Channel, as the parent
    of each licensee, is apparently liable for forfeitures based upon 26
    willful and repeated violations of our indecency rules.[^55]

19. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for the transmission of indecent
    material.[^56] 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."[^57]

20. Based upon our review of the record before us, we believe that an
    upward adjustment to the statutory maximum of \$27,500 for each of
    the 26 apparent indecency violations is warranted. The large number
    of apparent violations here, combined with Clear Channel's repeated
    broadcasts in the past of apparently indecent material over multiple
    stations licensed to its subsidiaries, evidences a pattern of
    violations that justifies a proposed forfeiture of the statutory
    maximum.[^58]

21. Because we find that Clear Channel, through its subsidiary captioned
    licensee companies, apparently violated 18 U.S.C. § 1464 and Section
    73.3999 of the Commission's rules on 26 separate occasions, and that
    each such violation is subject to an apparent forfeiture in the
    amount of \$27,500, we conclude that Clear Channel is apparently
    liable for a forfeiture in the amount of \$715,000 for willfully and
    repeatedly broadcasting indecent material during various segments of
    the "Bubba the Love Sponge" program over the captioned stations.
    Particularly in light of Clear Channel's history of violations of
    the indecency rules, we also take this opportunity to reiterate our
    recent admonition (which took place after the behavior at issue
    here) that serious multiple violations of our indecency rule by
    broadcasters may well lead to the commencement of license revocation
    proceedings.[^59] We expect Clear Channel in particular to take this
    admonition seriously.

22. We also have previously determined that the four captioned stations
    failed to maintain certain required documents in their respective
    public inspection files, in apparent willful violation of Section
    73.3526(e)(10) of the Commission's rules. Based upon the factors
    articulated in Section 503(b)(2)(D) of the Act and the base
    forfeiture amount specified in the *Forfeiture Policy Statement* for
    violations of the our public inspection file rules, we conclude that
    a proposed forfeiture is warranted in the base forfeiture amount of
    \$10,000 for each of the four apparent willful violations of Section
    73.3526(e)(10) of the Commission's rules, for a total of \$40,000.

**V. ORDERING CLAUSES**

23. 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,[^60] that Clear Channel Communications, Inc.,
    the parent company of each of the above-captioned licensees, is
    hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
    total amount of Seven Hundred Fifty-Five Thousand Dollars
    (\$755,000), for willfully violating 18 U.S.C. § 1464 and Sections
    73.3999 and 73.3526(e)(10) of the Commission's rules.[^61]

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 Notice,
    Clear Channel Communications, Inc. SHALL PAY the full amount of the
    proposed forfeiture against it 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 H. 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/Acct. No. 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 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.[^62]

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 Notice of
    Apparent Liability. 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 *First Complaint, Second
    Complaint and Third Complaint and Supplement* filed by Douglas
    Vanderlaan ARE GRANTED to the extent indicated herein, AND ARE
    OTHERWISE DENIED, and the complaint proceeding IS HEREBY TERMINATED.

31. IT IS FURTHER ORDERED, that copies of this *Notice of Apparent
    Liability For Forfeiture* shall be sent, by Certified Mail Return
    Receipt Requested, to Mr. Kenneth E. Wyker, Senior Vice President &
    General Counsel, Clear Channel Communications, Inc., c/o Clear
    Channel Worldwide, 200 East Basse Road, San Antonio, Texas
    78209-8328, with a copy to Clear Channel's counsel, John M. Burgett,
    Esq., at Wiley, Rein & Fielding, LLP, 1776 K Street, N.W.,
    Washington, D.C., 20006, and to Mr. Douglas Vanderlaan, 8114
    Parkridge Circle South, Jacksonville, Florida 32211, with a copy to
    his counsel, Arthur V. Belendiuk, Esq., at Smithwick & Belendiuk
    P.C., 5028 Wisconsin Avenue, N.W., #301, Washington, D.C. 20016.

FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

**Attachment A**

***Excerpts From WPLA(FM) Program Transcript***

***Provided As Exhibit 2 to April 3, 2002,***

***Complaint of Douglas Vanderlaan***

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height="8.75763888888889in"}

**Attachment B**

***FCC List of Small Entities***

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

**SEPARATE STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Clear Channel Broadcasting Licenses, Inc., Licensee of Station
WPLA(FM), Callahan, Florida; WCKT(FM), Port Charlotte, Florida (Formerly
Station WRLR(FM)); Citicasters Licenses, L.P., Licensee of Station
WXTB(FM), Clearwater, Florida; Capstar TX Limited Partnership, Licensee
of Station WRLX(FM), West Palm Beach, Florida.*

Seven broadcasts, twenty-six indecency violations, four public file
violations and fines equaling \$755,000. By today's action, we provide
yet another example of this Commission's commitment to enforce its rules
and regulations---especially as it relates to indecent programming
engulfing our broadcast airwaves.

As the Commission with the strongest enforcement record in decades, it
should come as little surprise that this Commission's indecency
enforcement has dwarfed its predecessors. I am proud of the fact that
over the past three years, we have proposed nearly twice the dollar
amount of indecency fines than the previous two Commissions combined
(over seven years) and ten times the amount of fines proposed by the
last Commission.

Now is not, however, a time to rest on our laurels and no broadcaster
should believe that we will. Indeed, due to the leadership on this issue
from Commissioner Martin, the Commission will soon begin considering
fines for each separate utterance found indecent in a broadcast. In
addition, we will continue to look to Congress to dramatically increase
the enforcement penalties available to us to prosecute clear indecency
violations. I applaud Chairman Upton, Chairman Tauzin, Congressmen
Dingell and Markey, Chairman McCain, Senator Hollings and the many
others on both sides of the aisle in Congress for providing vital
leadership on this issue.

As the Commission continues the challenging task of balancing the
protections of the First Amendment with the need to protect our young,
these increased enforcement actions will allow the Commission to turn
what is now a "cost of doing business" into a significant "cost for
doing indecent business."

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**DISSENTING**

*Re: Clear Channel Broadcasting Licenses, Inc., Licensee of Stations
WPLA(FM), Callahan, Florida, and WCKT(FM), Port Charlotte, Florida
(Formerly Station WRLR(FM)); Citicasters Licenses, L.P., Licensee of
Station WXTB(FM), Clearwater, Florida; Capstar TX Limited Partnership,
Licensee of Station WRLX(FM), West Palm Beach, Florida, Notice of
Apparent Liability for Forfeiture*

In this case, four Clear Channel stations aired on several occasions
graphic and explicit sexual content as entertainment. The extreme nature
of these broadcasts and the fact that the show at issue has been the
subject of repeated indecency actions gives the FCC the obligation to
take serious action. Instead, the majority proposes a mere \$27,500 fine
for each incident. Such a fine will be easily absorbed as a "cost of
doing business" and fails to send a message that the Commission is
serious about enforcing the nation's indecency laws. "Cost of doing
business fines" are never going to stop the media's slide to the bottom.

To fulfill our duty under the law, I believe the Commission should have
designated these cases for a hearing on the revocation of these
stations' licenses, as provided for by Section 312(a)(6) of the
Communications Act. I am discouraged that my colleagues would not join
me in taking a firm stand against indecency on the airwaves.

If the Commission can't bring itself to go to a revocation hearing, at
least the Commission should have used its current statutory authority to
impose a higher and meaningful fine. The Commission could have proposed
a fine for each separate "utterance" that was indecent, rather than one
fine for each lengthy segment. As Commissioner Martin points out, such
an approach would have led to a significantly higher fine.

Here, four Clear Channel stations ran several segments of the "Bubba the
Love Sponge" show which contained graphic and explicit sexual content.
The majority admits that each of these stations appears to have
egregiously and extensively violated the statutory ban on broadcast of
indecent material numerous times. But then the majority inexplicably
determines that the appropriate recourse for this filth is a \$27,500
fine for each violation.

The majority states that, in light of Clear Channel's history of
violations of the indecency rules, other serious multiple violations
"may well lead to license revocation proceedings." The majority fails to
acknowledge that not just Clear Channel, but the "Bubba the Love Sponge"
show, has been the subject of at least three previous fines for
violating our nation's indecency laws. This is not even "three strikes
and you are out" enforcement. How many strikes are we going to give
them?

This case may well lead broadcasters to believe that this Commission
will never use the enforcement authority it currently has available to
it. The message to licensees is clear. Even egregious repeated
violations will not result in revocation of a license. Rather, they will
result only in a financial penalty that is merely a cost of doing
business.

The time has come for this Commission to take a firm stand against the
"race to the bottom" as the level of discourse on the public's airwaves
gets progressively coarser and more violent. Our enforcement actions
should convince broadcasters that they cannot ignore their
responsibility to serve the public interest and to protect children. The
FCC's action today fails to do so.

**SEPARATE STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: Clear Channel Broadcasting Licenses, Inc., Licensee of Station
WPLA(FM), Callahan, Florida, WCKT(FM), Port Charlotte, Florida;
Citicasters Licenses, L.P., Licensee of Station WXTB(FM), Clearwater,
Florida; Capstar TX Limited Partnership, Licensee of Station WRLX(FM),
West Palm Beach, Florida, Notice of Apparent Liability for Forfeiture*

I agree with this Notice's conclusion that the licensees at issue
apparently violated our indecency rule and public file requirements.

I write separately to emphasize again that we could, and should, be
placing higher fines on those who broadcast indecent programming during
the hours when children may be watching or listening, in violation of
our rules and statute. The governing statute targets "whoever utters"
indecent or profane language, and the Commission should not continue to
treat an entire program full of indecent "utterances" as just one
violation.[^63] We should not continue to give a broadcaster who
violates our indecency rule at the beginning of a program a "free pass"
for the next two hours.

In this case, I would have found numerous violations, for a total
indecency fine significantly higher than that proposed (it appears there
were at least 49 indecency violations, for a total forfeiture exceeding
\$1,000,000).

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability for Forfeiture*

The Commission has a duty to enforce statutory and regulatory provisions
restricting broadcast indecency. The material broadcast by these four
Clear Channel radio stations is undeniably graphic and explicit in its
sexual content and clearly intended to shock listeners. Clear Channel
and, indeed, this particular "Bubba the Love Sponge" program have been
the subject of repeated Commission indecency actions in the past. Given
the explicit nature of the broadcast material and the history of prior
offenses, this is the type of serious repeated behavior that I believe
would warrant initiation of license revocation hearings.

In fairness, however, this material was broadcast in 2001. The
Commission clarified in an April 2003 order that it was broadening its
range of enforcement approaches and tools to combat indecency on our
nation's public airwaves. For this reason, I approve of today's Order as
legally appropriate. The egregious nature of the material clearly
warrants the statutory maximum \$27,500 fine per violation. While the
Commission at all times has the authority to initiate license revocation
hearings or sanction for multiple indecent utterances in a given program
segment, it can be argued that the Commission was not employing these
approaches at the time this material was broadcast. Nonetheless, as we
made clear last year, broadcasters are now aware that the Commission
will not hesitate to use its full range of enforcement sanctions for
indecent material broadcast after April 2003.

I also acknowledge the importance of broadcasters adhering to the public
inspection file rules. Documents pertaining to an FCC investigation are
clearly within the scope of the information that must be maintained in a
manner accessible to the listening public. In this case, each of the
stations inexplicably failed to include complaints related to the airing
of this material in their public files.

A broadcast license is a public privilege. In return, broadcasters have
a responsibility to serve the public. This public interest
responsibility clearly encompasses protecting children from indecency on
the airwaves and facilitating public access to documentation through
which the station can remain accountable to its local community and
listening public. These stations exhibited a blatant disregard for both.

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

[^2]: 47 C.F.R. § 73.3526(e)(10).

[^3]: Complaint of Douglas Vanderlaan*,* dated April 3, 2002 ("*First*
    *Complaint"*); Second Complaint of Douglas Vanderlaan, dated October
    10, 2002 ("*Second Complaint*"); Third Complaint and Supplement of
    Douglas Vanderlaan*,* dated January 27, 2003 *("Third Complaint").*

[^4]: Letter from Charles W. Kelley, Chief, Investigations and Hearings
    Division, Enforcement Bureau, to Clear Channel Broadcasting
    Licenses, Inc. and Citicasters Licenses, L.P., dated July 5, 2002
    ("*Initial LOI*"); Letters from Maureen F. Del Duca, Chief,
    Investigations and Hearings Division, Enforcement Bureau, to Clear
    Channel Broadcasting Licenses, Inc., Citicasters Licenses, L.P.,
    Capstar TX Limited Partnership and Kenneth E. Wyker, Senior Vice
    President & General Counsel, Clear Channel Communications, Inc.,
    dated August 18, 2003 ("*Second LOI*" and "*Third LOI").*

[^5]: Letter from John M. Burgett, Esq., to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated July 15, 2002;
    Letter from Kenneth W. Wyker, Senior Vice President & General
    Counsel, Clear Channel Communications, Inc., to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated August 1, 2002
    ("*Initial LOI Response*"); Letter from Kenneth W. Wyker, Senior
    Vice President & General Counsel, Clear Channel Communications,
    Inc., to Marlene H. Dortch, Secretary, Federal Communications
    Commission, dated August 28, 2002 ("*Supplement to Initial LOI
    Response*"); Letter from Richard W. Wolf, Vice President, Clear
    Channel Communications, Inc., to Marlene H. Dortch, Secretary,
    Federal Communications Commission, dated September 16, 2003
    ("*Second LOI Response*"); Letter from Richard W. Wolf, Vice
    President, Clear Channel Communications, Inc., to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated September 16,
    2003 ("*Third LOI Response*"); Letter from John M. Burgett, Esq., to
    Judy Lancaster, Esq., Investigations and Hearings Division,
    Enforcement Bureau

[^6]: Letter from Arthur V. Belendiuk, Esq., to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated August 13, 2002
    ("*First Vanderlaan Reply*"); Letter from Douglas G. Vanderlaan to
    Marlene H. Dortch, Secretary, Federal Communications Commission,
    dated September 24, 2003. ("*Second Vanderlaan Reply*")

[^7]: *See* 47 U.S.C. § 326.

[^8]: 18 U.S.C. § 1464.

[^9]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992); *Action for Children's Television v. FCC,* 58 F.3d
    654 (D.C. Cir 1995), *cert. denied*, 516 U.S. 1043 (1996) ("*Act
    III*").

[^10]: *See* Attachment A.

[^11]: *Supplement to Initial LOI Response* at 2.

[^12]: *Initial LOI Response* at 1.

[^13]: *Infinity Broadcasting Corp. of Los Angeles (KROQ-FM),*
    Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶¶ 17-18
    (2002).

[^14]: *See* *Third LOI Response* at 1.

[^15]: U.S. [Const.]{.smallcaps}, amend. I; *Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^16]: Title 18 of the United States Code, Section 1464 (18 U.S.C. §
    1464), prohibits the utterance of "any obscene, indecent or profane
    language by means of radio communication." *FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978). *See also ACT I*, 852 F.2d at
    1339; *Action for Children's Television v. FCC,* 932 F.2d 1504, 1508
    (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992) ("*ACT II*");
    *ACT III*, 58 F.3d 654*.*

[^17]: *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 general definition of indecency will be tempered
    by the Commission's restrained enforcement policy.") *See also
    United States v. Playboy Entertainment Group, Inc.*, 529 U.S. 803,
    813-15 (2000).

[^18]: *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)).

[^19]: *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).

[^20]: *See* *Initial LOI Response* at 2-6. As a preface to its analysis
    of each segment, Clear Channel states "Although the transcripts do
    include references and phrases of a sexual nature, and while some
    may find such material to be distasteful or offensive, these
    references and phrases alone do not make the broadcasts indecent."
    *Id.* at 2.

[^21]: 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 WPBN/WTOM License Subsidiary, Inc.,* 15 FCC Rcd 1838,
    1841 (2000).

[^22]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 9 (emphasis
    in original).

[^23]: *Id.* at 8002-15, ¶¶ 8-23.

[^24]: *Id.* at 8003, ¶ 10.

[^25]: *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)).

[^26]: *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").

[^27]: *See* Attachment A *passim.*

[^28]: The complainant\'s transcript reflects bleeps of certain
    offensive words. A review of the relevant tapes indicates that the
    letters before the word "(bleep)" in many cases were aired. However,
    although the transcript suggests otherwise, a review of the relevant
    tape indicates that the letters after the word "(bleep)" were
    completely bleeped. In any event, our indecency finding is not based
    on airing of the specific bleeped words.

[^29]: *See* Attachment A at 1-2.

[^30]: *See* Attachment A at 3-5.

[^31]: *See* Attachment A at 5-7.

[^32]: *See* Attachment A at 7-9.

[^33]: *See* Attachment A at 9-21.

[^34]: *See* Attachment A at 21-25.

[^35]: *See* Attachment A at 26-28.

[^36]: *See ACT III*, 58 F.3d at 660-63.

[^37]: *See supra* ¶ 4.

[^38]: *Id.*

[^39]: The *First Complaint* also included allegations of indecency with
    respect to three other broadcast segments. We conclude that these
    broadcasts were not sufficiently graphic and/or sustained to be
    considered indecent and are denying the *First Complaint* with
    respect to these segments.

[^40]: 47 C.F.R. § 73.3526(e)(10).

[^41]: *Id.*

[^42]: *See Padre Serra Communications, Inc*., 14 FCC Rcd 9709 (1999)
    (citing *Gaffney Broadcasting, Inc*., 23 FCC 2d 912, 913 (1970) and
    *Eleven Ten Broadcasting Corp*., 33 FCC 706 (1962)); *Surrey Front
    Range Limited Partnership*, 71 RR 2d 882 (FOB 1992) (\"*Surrey*\").

[^43]: *Second Complaint* at Exhibits 1, 4. In the Declaration of Ms.
    Taunton, who attempted to inspect the WXTB(FM) public file, she
    states that, after specifically asking to see the *First Complaint*,
    "\[a\] copy of the Complaint was subsequently found in the station
    manager's office and made available for my review." *Id.* at Exhibit
    3. However, it is clear that, had Ms. Taunton not been aware of that
    document, she would not have learned of it from her inspection of
    the file, the purpose behind the requirement that it be included in
    the file.

[^44]: *Third LOI Response* at 2.

[^45]: 47 C.F.R. § 73.3526(e)(10).

[^46]: *See First Complaint* at 15-16.

[^47]: *See Isothermal Community College*, DA 03-3638, 2003 WL 22682096
    (Enf. Bur. November 14, 2003) (citing *Kaye-Smith Enterprises*, 98
    FCC 2d 675, 682 (1984)); *Hoffart v. FCC*, 787 F.2d 675 (D.C. Cir.
    1986) (citing *Chronicle Broadcasting Co*., 19 FCC 2d 240, 244
    (1969)).

[^48]: *See also* *Second Vanderlaan Reply.*

[^49]: 47 U.S.C. § 326.

[^50]: *See, e.g., Licensee Responsibility to Review Records Before
    Their Broadcast,* Notice, 28 FCC 2d 409 (1971), *modified,*
    Memorandum Opinion and Order, 31 FCC 2d 377 (1971), *aff'd sub nom,
    Yale Broadcasting Co. v. FCC,* 478 F.2d 594 (D.C. Cir. 1973), *cert.
    denied,* 414 U.S. 914 (1973).

[^51]: 47 U.S.C. § 503(b)(1).

[^52]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); s*ee also* 47
    U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
    1464). Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law. 47 U.S.C. §
    312(f)(1). The legislative history to Section 312(f)(1) of the Act
    clarifies that this definition of willful applies to both Sections
    312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the Section 503(b) context. *See, e.g., Application for Review of
    Southern California Broadcasting Co.*, Memorandum Opinion and Order,
    6 FCC Rcd 4387, 4388 (1991) ("*Southern California Broadcasting
    Co.*"). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc., Grand Isle, Louisiana*, Notice of Apparent
    Liability for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
    Notice of Apparent Liability for, *inter alia*, a cable television
    operator's repeated signal leakage). "Repeated" merely means that
    the act was committed or omitted more than once, or lasts more than
    one day. *Southern California Broadcasting Co.,* 6 FCC Rcd at 4388,
    ¶ 5; *Callais Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^53]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^54]: *See, e.g., SBC Communications, Inc.,* Apparent Liability for
    Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
    (forfeiture paid).

[^55]: 7 broadcasts x 3 stations (WXTB(FM), WRLX(FM) and WPLA(FM)) = 21
    violations + 5 broadcasts by WCKT(FM) = 26 violations.

[^56]: *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 has 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 Amendment of Section 1.80(b) of the
    Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
    Inflation,* 15 FCC Rcd 18221 (2000).

[^57]: The maximum forfeiture amount for a single violation for the
    broadcast of apparently indecent material is \$27,500. 47 C.F.R. §
    1.80(b)(1).

[^58]: *See, e.g., AMFM Radio Licenses, LLC (WWDC(FM))*, Notice of
    Apparent Liability for Forfeiture, FCC 03-233 (rel. Oct. 2, 2003)
    (forfeiture paid); *Citicasters Co.* (*KEGL*(*FM))*, Notice of
    Apparent Liability for Forfeiture, 16 FCC Rcd 7546 (Enf. Bur. 2001)
    (forfeiture paid); *Citicasters Co. (WXTB(FM)),* Forfeiture Order,
    15 FCC Rcd 25453 (2000) (forfeiture paid); *Citicasters Co.
    (KSJO(FM)),* Notice of Apparent Liability for Forfeiture, 15 FCC Rcd
    19095 (Enf. Bur. 2000) (forfeiture paid); *Citicasters Co.
    (KSJO(FM)),* Notice of Apparent Liability for Forfeiture, 15 FCC Rcd
    19091 (Enf. Bur. 2000) (forfeiture paid); *Citicasters Co.
    (WXTB(FM)),* Forfeiture Order, 15 FCC Rcd 11906 (2000) (forfeiture
    paid).

[^59]: *See Infinity Broadcasting Operations, Inc.(WKRK-FM)*, Forfeiture
    Order, 18 FCC Rcd 6915, 6919, ¶ 13 (2003); *see also AMFM Radio
    Licenses LLC (WWDC-FM),* Notice of Apparent Liability for
    Forfeiture, 18 FCC Rcd 19917, ¶16 (2003) (forfeiture paid);
    *Infinity Broadcasting Operations, Inc.(WNEW(FM),* Notice of
    Apparent Liability for Forfeiture, 18 FCC Rcd 19954, ¶ 19 (2003)
    (response pending).

[^60]: 47 C.F.R. § 1.80.

[^61]: Station WXTB(FM), Station WRLX(FM) and Station WPLA(FM) shall
    each be allocated the sum of Two Hundred Two Thousand Five Hundred
    Dollars (\$202,500.00) for six indecency violations and one public
    inspection file violation (6 x \$27,500 = \$192,500 + \$10,000 =
    \$202,500). The sum of One Hundred Forty-Seven Thousand Five Hundred
    Dollars (\$147,500.00) is allocated to Station WCKT(FM) for five
    violations of the Commission's indecency rules and one violation of
    the Commission's public inspection file rule \[5 x \$27,500 =
    \$137,500 + \$10,000 = \$147,500).

[^62]: *See* 47 C.F.R. § 1.1914.

[^63]: *See* 18 U.S.C. § 1864 ("Whoever utters any obscene, indecent, or
    profane language by means of radio communication shall be fined
    under this title or imprisoned not more than two years, or both"),
    47 C.F.R. § 73.3999 ("No licensee of a radio or television broadcast
    station shall broadcast on any day between 6 a.m. and 10 p.m. any
    material which is indecent").