**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

# In the Matter of ) 

)

**CAPSTAR TX LIMITED** ) Case No. 98070073

# **PARTNERSHIP** ) NAL/Acct. No. 200132080001

) Facility #9620

Licensee of Station KTXQ(FM), ) JJS

Fort Worth, Texas )

)

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: October 5, 2000 Released: October 6, 2000**

By the Chief, Enforcement Bureau:

### I. Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find Capstar
    TX Limited Partnership ("Capstar"), licensee of Station KTXQ(FM),
    Fort Worth, Texas, apparently liable for a seven thousand dollar
    (\$7,000) 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 a complaint concerning a broadcast during
    the station's morning show on June 8, 1998 between 6:38 a.m. and
    10:00 a.m. We are attaching to this notice a transcript of the
    relevant portions of the program.

3.  By letter dated June 8, 2000, we requested Capstar to comment on the
    complaint. Capstar, through its corporate parent Clear Channel
    Communications, Inc., filed its response on September 1, 2000. In
    its response, Capstar explains that it acquired control of KTXQ(FM)
    on May 29, 1998 and that within two months after it acquired the
    station, it replaced virtually the entire staff, including the disc
    jockeys identified as the male voices on the transcript, in
    connection with a format change. For those reasons, Capstar states
    that is cannot determine whether the transcript accurately reflects
    what was broadcast.

### III. Discussion

4.  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."

5.  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).

6.  In its response, Capstar argues that the material does not "clearly
    and inescapably \[describe\] sexual or excretory activities and
    organs in patently offensive terms" and that, at worst, the material
    is in "bad taste." We disagree. The material in question not only
    discusses sexual activities and organs, the disc jockeys' comments
    and the context of the material demonstrate that the material was
    presented in a pandering and titillating, patently offensive manner,
    as opposed to a clinical discussion of sex. While we agree with
    Capstar that neither subject matter nor the use of particular words
    is sufficient to render material indecent, our conclusion that the
    material appears to be indecent is based upon the material as a
    whole and the context in which it is offered.

7.  We also reject Capstar's argument that this material cannot be found
    indecent because it was no more graphic or less graphic than
    material in cases where the Mass Media Bureau did not take
    enforcement action. In that regard, Capstar cites *Letter from
    Chief, Complaints and Investigations Branch, Mass Media Bureau to
    Gerald P. McAtee*, 8210-EJS (issued October 26, 1989), *Letter from
    Chief, Complaints and Investigations Branch, Mass Media Bureau to
    Mr. R.D. Merkel*, 8310-TRW, April 21, 1997 Memorandum from Thom
    Winkler to WIOD(AM) Complaint File (Control No. 97010196), and
    *Letter from Chief, Complaints and Investigations Branch, Mass Media
    Bureau to Mrs. Barbara Onisko*, 8310-TRW (issued May 15, 1997). We
    note that while material that is more graphic is more likely to be
    found indecent, the context in which material is offered is
    essential to making a determination as to whether material is
    indecent. For example, the "Geraldo" episode discussed in the
    *Letter to Gerald P. McAtee* was not patently offensive within the
    meaning of the statute because the program as a whole was a serious
    discussion of sex with people knowledgeable in the field. *See also*
    *King Broadcasting Co. (KING-TV)*, 5 FCC Rcd 2971 (1990) (broadcast
    of high school sex education class not indecent because material was
    clinical or instructional). In contrast, the material in this case
    cannot be said to be clinical or instructional.

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. While Capstar argues that the station has a history of
    compliance with the Commission's rules, such that any forfeiture
    should be lower than the base amount, we believe it is appropriate
    to look at the history of all stations controlled by Clear Channel
    Communications, Inc. ("Clear Channel"), Capstar's parent. We note
    that stations controlled by Clear Channel have recently committed
    indecency violations, as well as violations of the rule regarding
    broadcast of telephone conversations and the rule regarding
    licensee-conducted contests. *See Citicasters Co.*, DA 00-1640
    (released July 26, 2000) (\$6,000 NAL for violation of Section
    73.1206 of the Commission's rules, forfeiture paid), *Citicasters
    Co.*, DA 00-1435 (released June 28, 2000), (\$7,000 forfeiture order
    for violation of 18 U.S.C. § 1464, forfeiture paid), *Citicasters
    Co.*, 15 FCC Rcd 11906 (2000) (\$23,000 forfeiture order for
    violation of 18 U.S.C. § 1464, forfeiture paid), *Citicasters Co.*,
    DA 00-1016 (released May 9, 2000) (\$4,000 NAL for violation of
    Section 73.1216 of the Commission's rules, forfeiture paid), *Clear
    Channel Broadcasting Licenses, Inc.*, 15 FCC Rcd 2734 (EB 2000)
    (\$4,000 NAL for violation of Section 73.1216 of the Commission's
    rules, forfeiture paid). Under these circumstances, we reject
    Capstar's claim that it is entitled to a reduction based upon a
    record of overall compliance with the Commission's rules.
    Accordingly, after reviewing all of the circumstances, we believe a
    \$7,000 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 Capstar TX Limited
    Partnership is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of seven thousand dollars (\$7,000) 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,
    Capstar 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. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Capstar's counsel,
    Dorann Bunkin, Esq., Wiley, Rein & Fielding, 1776 K Street, N.W.,
    Washington, DC 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Radio Station: KTXQ-FM, Fort Worth, TX

Date/Time Broadcast: June 8, 1998, between 6:38 a.m. and 10 a.m.

Material Broadcast: Comments: Lex and Terry

98070073

KTXQ

MV: Male Voice

M2: Second Male Voice

FV: Female Voice

FC: Female Caller

\* \*

FC: Christi, I have a boy friend who\'s really big and we\'ve been
together like for 3 years now and it\'s still, it\'s kind of painful to
have sex. I was just wondering if you have any advice for me on how to.

M2: Yeah, send him over.

MV: Sam Kennison gave advice. (Unintelligible).

FV: Now you\'re talking for just straight intercourse?

FC: Intercourse and when I suck his (Bleep).

M2: Get that.

M2: Can\'t say that.

FC: Okay, sorry. Like when I go down (Bleep).

M2: Going to lose our jobs.

FC: He\'s too big, I mean, I get, I try.

FV: I have a small mouth also. (Laughter).

M2: Oh, okay.

FV: Listen, listen, listen, listen, just don\'t do it. (Laughter).

MV: Oh come on, I got better advice than that. And listen, in the words
of Sam Kennison, have him lick the alphabet. Alright, if he gets you
nice and ready by doing things orally, the girl can much better handle a
big penis. (Unintelligible).

M2: Oh man, whoa. (Unintelligible). That\'s fine.

MV: The girl has to be lubricated. And the guy has got to do things to
relax her muscles. These are the things you can say on radio, right?

M2: Sure. (Unintelligible).

MV: Once the girl is all ready and her muscles are nice and comfortable
and they\'re moving, you know, and all. (Unintelligible). I mean, they
give birth don\'t they? (Unintelligible). So where are you guys going
when you got a new career?

\* \*

FC: I have another question, too.

MV: Okay.

FC: Some of these movies that I\'ve seen, they have guys that have like
deformities of their genitals. Do you guys have.

M2: Oh geez.

FC: Open calls for these people or how.

KTXQ-FM 2.

MV: Well, explain a deformity. Explain what do you mean?

FC: Okay there\'s one I saw a tape with one guy\'s.

M2: Thing.

FC: No.

M2: Things.

FC: His testicles looked as big as a soccer ball.

MV: Oh, I know what you\'re talking about, that\'s a (Unintelligible).
They make those fake, that\'s all fake, it\'s for esthetics(?). They
have two penises on one guy, one guy\'s got a basketball.

FC: That one too.

MV: That\'s all fake, that\'s, it\'s just a kinky thing. They want to
see something out of the ordinary. (Unintelligible).

\* \*

[^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.