Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | File No. EB-02-IH-0715       |
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| **ENTERCOM SACRAMENTO LICENSE,    | ) | FRN: 0003245347              |
| LLC**                             | * |                              |
|                                   | * | NAL/Acct. No. 200432080020   |
| Licensee of Station KRXQ(FM),     |   |                              |
|                                   | * | Facility ID No. 20354        |
| Sacramento, California            | * |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** September 22, 2004 **Released:** October 15, 2004

By the Commission: Commissioners Copps and Martin approving in part,
concurring in part and issuing separate statements.

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended (the "Act"), and Section 1.80 of the Commission's rules,[^1]
    we find that Entercom Sacramento License, LLC ("Entercom"), licensee
    of Station KRXQ(FM), Sacramento, California, broadcast indecent
    material on two separate occasions, in apparent willful and repeated
    violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. Based upon
    our review of the facts and circumstances in this case, we conclude
    that Entercom is apparently liable for a forfeiture in the maximum
    amount of Fifty-Five Thousand Dollars (\$55,000).

    **II. BACKGROUND**

2.  This proceeding arises out of a series of written complaints from a
    listener alleging that Station KRXQ(FM) broadcast indecent material
    during segments of the "Rob, Arnie & Dawn In The Morning Show" (the
    "RA&D Show") between 7:00 a.m. and 10:00 a.m. on various dates in
    2002 and 2003.[^2] After reviewing the complaints, audio tapes, and
    transcripts provided by the Complainant, the Enforcement Bureau
    directed a letter of inquiry ("LOI") to Entercom requiring further
    information about program segments that Station KRXQ(FM) allegedly
    broadcast on September 13, 2002 ("Segment 1"), and January 17, 2003
    ("Segment 2").[^3]

3.  Entercom timely responded to the LOI.[^4] Entercom states in its
    *Response* that it did not retain a recording of the program that
    Station KRXQ(FM) broadcast on September 13, 2002. In the absence of
    a recording of its own, Entercom maintains that it cannot
    conclusively determine that the specific material set forth in
    Segment 1 actually was broadcast over Station KRXQ(FM) on that
    date.[^5] Additionally, although Entercom concedes that Station
    KRXQ(FM) has aired segments during the RA&D Show in which "Arnie"
    speaks in a young boy's voice, it maintains that the transcript of
    the material contained in Segment 1, in which one of the announcers
    speaks in a child's intonation, omits dialogue among the show hosts
    that is typical of such segment routines, thus creating a
    "misimpression concerning the totality and context" of the material
    that was broadcast.[^6] By contrast, Entercom confirms in its
    *Response* that the material contained in Segment 2 was indeed
    broadcast over Station KRXQ(FM), albeit on January 23, 2003, not
    January 17, 2003, as alleged by the Complainant.[^7]

4.  Entercom argues that none of the material cited by the Complainant
    to be indecent satisfies the Commission's definition of indecency.
    In this regard, Entercom claims that the material contained in
    Segment 1 was fleeting and did not have an inescapable sexual
    import; and the material contained in Segment 2 was deliberately
    oblique and far less explicit than material previously deemed
    acceptable by the Commission.[^8] In addition, Entercom maintains
    that the Commission's indecency definition is unconstitutionally
    vague and overbroad.[^9] Finally, Entercom claims that, because
    Station KRXQ(FM) generally garners relatively high ratings in the
    Sacramento, California, market, the sensitivities of a single
    complainant do not reflect the contemporary standards of the
    Sacramento listening community.[^10]

    **III. DISCUSSION**

5.  The Federal Communications Commission is authorized to license radio
    and television broadcast stations and is responsible for enforcing
    the Commission's rules and applicable statutory provisions
    concerning the operation of those stations. The Commission's role in
    overseeing program content is very limited. The First Amendment to
    the United States Constitution and Section 326 of the Act prohibit
    the Commission from censoring program material and from interfering
    with broadcasters' freedom of expression.[^11] 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."[^12] In addition,
    consistent with a subsequent statute and court case,[^13] 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.[^14]

6.  As an initial matter, we find that both segments that are the
    subject of this *NAL* were indeed broadcast over Station KRXQ(FM)
    during the restricted time period. Entercom does not dispute that
    Station KRXQ(FM) broadcast the RA&D Show on the dates and at the
    time periods in question. Entercom claims that it cannot determine
    with absolute certainty that Station KRXQ(FM) broadcast the specific
    material contained in Segment 1 because it did not retain a
    recording or transcript of that program.[^15] Based upon the
    evidence before us, including Entercom's failure to refute the
    complainant's allegations, we find that Station KRXQ(FM) broadcast
    the material contained in Segment 1, as alleged.[^16] We further
    conclude that Station KRXQ(FM) broadcast the material contained in
    Segment 2 during the restricted hours of the day. Entercom
    acknowledges as much, although it states that the material contained
    in Segment 2 was broadcast on January 23, 2003, not on January 17,
    2003, as alleged.[^17] We will accept Entercom's date as that of the
    broadcast.

7.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^18] 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.[^19]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands that, in indecency determinations, we
    proceed cautiously and with appropriate restraint.[^20]

8.  The Commission defines indecent speech as language that, in context,
    depicts or describes sexual or excretory activities or organs in
    terms patently offensive as measured by contemporary community
    standards for the broadcast medium.[^21]

> 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.[^22]

9.  Turning to the instant case, we begin our analysis with an
    examination of whether the material that was broadcast, in context,
    depicts or describes sexual or excretory organs or activities. We
    find that it does. Listeners tuning into Station KRXQ(FM) at the
    times when the two segments were broadcast were exposed to a
    monologue involving contact of a sexual nature with a child; a
    dialogue about various sexual activities, including methods of
    engaging in sexual intercourse; and multiple references to sexual
    organs. Accordingly, we conclude that each of the segments at issue
    describes sexual or excretory organs or activities, satisfying the
    first prong of our indecency analysis.

10. Having satisfied the first prong, we now turn to an analysis of
    whether the material in each of the three 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.[^23] In our assessment of whether broadcast
    material is patently offensive, "the *full context* in which the
    material appeared is critically important."[^24] Three principal
    factors are significant to this contextual analysis: (1) the
    explicitness or graphic nature of the description; (2) whether the
    material dwells on or repeats at length descriptions of sexual or
    excretory organs or activities; and (3) whether the material appears
    to pander or is used to titillate or shock.[^25] In examining these
    three factors, we must weigh and balance them to determine whether
    the broadcast material is patently offensive because "\[e\]ach
    indecency case presents its own particular mix of these, and
    possibly, other factors."[^26] In particular cases, the weight of
    one or two of the factors may outweigh the others, either rendering
    the broadcast material patently offensive and consequently
    indecent,[^27] or, alternatively, removing the broadcast material
    from the realm of indecency.[^28]

11. We turn now to an analysis of these factors as they relate to each
    segment 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]{.underline}: The September 13, 2002 segment involved one
    of the program hosts playing the role of a young boy describing how
    his father wanted to take photographs of him in the nude and show
    the youngster his erect penis. Although the segment employed
    euphemisms ("Daddy's going to take me to a restaurant 'cause he
    wants to take pictures of me in my birthday suit. Daddy's giving me
    a submarine. He says he's giving me something long, hard, and full
    of seaman."), the sexual import of the material is unmistakable.
    Although the segment was relatively brief, there is no question that
    its purpose was to shock and titillate, and is similar to other
    patently offensive material involving graphic references to sexual
    activity with children, which were found to be indecent.[^29] Under
    these circumstances, we need not find that the sexual references
    were repeated at length in order to find that the material is
    patently offensive. As noted in the *Indecency Policy Statement*,
    broadcasting references to sexual activities with children, even if
    relatively fleeting, may be found indecent where, as here, other
    factors contribute to a finding of patent offensiveness.[^30]

    [Segment 2]{.underline}: The January 23, 2003, segment involved a
    graphic and detailed discussion of various methods that men may
    employ to disgrace, degrade and humiliate women before, during, and
    after sexual intercourse. The discussion went on for a considerable
    length of time about descriptions of sexual or excretory organs and
    activities. The discussion of each method, for which a descriptive
    name was given, was interspersed with laughter as well as
    expressions of repulsion. The discussion was shocking for its
    depravity and clearly intended as such.

> Entercom maintains that the discussion was "deliberately oblique" and
> less explicit than other material that the Commission has deemed
> acceptable. We disagree. The discussion was not oblique in any sense
> of the word. For example, at one point, one of the hosts advises how a
> man may "proceed to engage in the most violent and forceful sex
> imaginable . . . calling her the most obscene names you can come up
> with, and slapping her."[^31] At another point in the broadcast, the
> host suggests that after intercourse, "\[y\]ou put your ass right over
> her face while she's sleeping . . . and break wind."[^32] Elsewhere,
> the host describes for the listening audience, "while taking the girl
> from behind, the guy reaches around, grabs her breasts as hard as he
> can . . . and screams out another girl's name, then he holds on for
> the wild bronco ride."[^33] In yet another part of the same broadcast,
> the host suggests that, while having sex in a bathroom, "you're
> engaged in, um, 'from behind action' . . . then when ready, he sticks
> her head into a toilet, which contains a recently deposited log cabin,
> simultaneously flushing it . . . you hold her head there."[^34] The
> host also describes how "\[o\]nce again, you're taking her from behind
> . . . then the man wraps his arms around her throat . . . placing her,
> again without her permission, placing her in the traditional "sleeper"
> wrestling hold . . . . cutting off air to the carotid artery . . . .
> He maintains the hold until she is unconscious . . . reviving her with
> his own special form of smelly salts \[farting noise\] on her
> nose."[^35] This discussion was unquestionably graphic, not oblique.
>
> We also reject Entercom's contention that this material cannot be
> found indecent because there are other cases referencing topics such
> as masturbation, and anal and oral sex in which no enforcement action
> was taken. In support of this argument, Entercom cites, among other
> things, two unpublished Enforcement Bureau staff decisions, in which
> there were references to "giving head"[^36] and "finger banging your
> boyfriend."[^37] However, the material in Segment 2 is more graphic
> and explicit than the language cited in those decisions. Moreover, the
> use of the term "finger banging" was brief and fleeting, which is not
> the case with the material at issue here.[^38]
>
> We believe the material at issue in Segment 2 is strikingly similar to
> material that the Commission has previously found to be actionably
> indecent. *See* *Infinity Broadcasting Operations, Inc.*, 18 FCC Rcd
> 6915 (2003). As we did in that *Infinity* decision, we find the tone
> of the material in the instant case to be extraordinarily vulgar,
> extremely lewd, and profoundly unfit for broadcast when children may
> be in the audience. For these reasons, we find that the broadcast in
> Segment 2 was patently offensive as measured by contemporary community
> standards for the broadcast medium.

12. Entercom has acknowledged that it broadcast the RA&D Show between 6
    a.m. and 10 p.m., a time frame relevant to an indecency
    determination.[^39] Because there was a reasonable risk that
    children may have been in the audience when the material in each of
    the two segments was broadcast, the material that was broadcast is
    legally actionable. By broadcasting this material over Station
    KRXQ(FM), Entercom apparently willfully and repeatedly violated the
    prohibitions in the Act and the Commission's rules against broadcast
    indecency.

13. We reject Entercom's claim that, because this proceeding was
    precipitated by complaints from a lone individual, and Station
    KRXQ(FM) generally enjoys high ratings, the contemporary community
    standards of the Sacramento, California, listening community must,
    as a consequence, embrace the station's programming.[^40] Whether
    particular material is actionably indecent does not turn on whether
    the station that broadcast it (or the program) happens to be popular
    in its particular market.[^41] Indeed, the fact that Station
    KRXQ(FM) draws a significant number of Sacramento area listeners
    serves to increase the likelihood that more children were among
    those who may have heard the indecent broadcasts.

14. Finally, there is no merit to Entercom's argument that the
    Commission's indecency definition is unconstitutionally vague and
    overbroad.[^42] The Commission has rejected similar constitutional
    challenges to our broadcast indecency standards, including
    constitutional challenges based on *Reno v*. *ACLU*, a case which
    Entercom cites and which invalidated an indecency standard for the
    Internet.[^43] Moreover, the courts have rejected similar claims
    that the broadcast of indecent material may not be restricted for
    the protection of children.[^44]

15. 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, 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. [^45] Based on the material before us, it appears that
    Entercom willfully and repeatedly violated 18 U.S.C. § 1464 and
    Section 73.3999 of the Commission's rules, by airing indecent
    programming over Station KRXQ(FM) on September 13, 2002, and January
    23, 2003.

16. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for the transmission of indecent or
    obscene materials.[^46] 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."[^47] Based upon our thorough review of the record,
    including the egregious nature of the misconduct and Entercom's
    prior history of violations,[^48] we conclude that an upward
    adjustment of the forfeiture amount to the statutory maximum of
    \$27,500 is warranted in this case for each instance in which
    Entercom apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
    73.3999.[^49] Thus, we find that the appropriate forfeiture amount
    is \$55,000 (2 x \$27,500). We take this opportunity to note that
    similar violations of this nature by Entercom could well lead to
    more severe enforcement action, including commencement of license
    revocation proceedings.[^50]

    **IV. ORDERING CLAUSES**

17. ACCORDINGLY, IT IS ORDERED, that the complaints filed against
    Entercom Sacramento License, LLC, Licensee of Station KRXQ(FM),
    Sacramento, California, dated September 9, September 13, and October
    5, 2002; and February 26, and March 10, 2003, ARE GRANTED to the
    extent indicated herein.

18. 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,[^51] that Entercom Sacramento License, LLC is hereby NOTIFIED
    of its APPARENT LIABILITY FOR FORFEITURE in the amount of Fifty-Five
    Thousand Dollars (\$55,000) for willfully violating 18 U.S.C. § 1464
    and Section 73.3999 of the Commission's rules.

19. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL,*
    Entercom SHALL PAY the full amount of the proposed forfeiture or
    SHALL FILE a written statement seeking reduction or cancellation of
    the proposed forfeiture.

20. 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 SHALL INCLUDE the FCC Registration Number
    (FRN) referenced above and also SHALL NOTE the NAL/Acct. No.
    referenced above.

21. The response, if any, SHALL 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 DC 20554, and SHALL INCLUDE the NAL/Acct. No.
    referenced above.

22. 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.

23. Requests for payment of the full amount of the forfeiture proposed
    in this *NAL* under an installment plan SHALL BE SENT to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^52]

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

25. IT IS FURTHER ORDERED that a copy of this *NAL* shall be sent, by
    Certified Mail/Return Receipt Requested, to Entercom's counsel,
    Brian M. Madden, Esq., Leventhal, Senter & Lerman, PLLC, 2000 K
    Street, N.W., Suite 600, Washington, DC 20006-1809.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[ATTACHMENT A]{.underline}**

**[September 13, 2002]{.underline}**

ARNIE \[affecting the tone of a young boy\]: "Daddy's going to take me
to a restaurant 'cause he wants to take pictures of me in my birthday
suit. Daddy's giving me a submarine. He says he's giving me something
long, hard, and full of seaman."

END OF SEGMENT

**[ATTACHMENT B]{.underline}**

**[January 23, 2003]{.underline}**

DAWN: Sweetheart.

ROB: So. And you might, you might have to invest some time to get her to
the point where you can then perform the Rose-Creeper, which is, you
begin the event by very seductively brushing a long-stem rose all along
her body . . .

DAWN: Oooh.

ROB: . . . you're telling her how beautiful she is, you're caressing
her, you're kissing her body, OK, and I mean it is very romantic.

DAWN: And you got to picture a sweet little mousey girl.

ARNIE: Uh huh.

ROB: You get her in the mood for love-making, and then you proceed to
engage in the most violent and forceful sex imaginable, while whipping
her with the rose, calling her the most obscene names you can come up
with, and slapping her. \[thudding sound\]

DAWN: Oh my God! That will ruin someone like that.

ROB: Or turn her into to a complete slut, well that would be ruining
her, yeah.

DAWN: Oh my God, that would so give her low self-esteem or something.

ARNIE: \[snicker\] Um, I don't like the whipping with the rose . . .

ROB: It's kind of dopey . . . \[laughter\]

ARNIE: Yeah, that's . . . bad.

ROB: . . . but a mousey girl would think that was really . . . or a
virgin or something like that.

DAWN: Come on. Yeah. No that

ARNIE: I don't like the whipping with the rose.

DAWN: Oh God! And the . . .

ARNIE: Everything else, though.

DAWN: . . . and the betrayal, she thinks this guy likes her and they are
going to make sweet passionate love and like . . .

ROB: And he's calling her the worst thing.

DAWN: . . . and the whole time he was betraying her and conning her.

ARNIE: And videotaping it for his friends to see.

ROB: Or they're in the closet watching. Who knows?

ARNIE: Um hum.

ROB: I mean, you can probably add to it by having them pop out at the
end.

ARNIE: Could you watch?

ROB: Oh yeah! Yeah.

ARNIE: Could you watch it with out laughing?

ROB: No.

ARNIE: Well, OK.

ROB: No.

ARNIE: I would bust up too hard in the closet, I would be laughing so
hard when he's . .

DAWN: \[gasp\] Arnie!

ARNIE: It would be funny.

ROB: Yeah.

ARNIE: It would be funny.

DAWN: I hope, you know what, I hope these girls have brothers.

ROB: Um.

ARNIE: Oh yeah! You go girl.

ROB: One more of, you know, I'm sorry I'd . . .

ARNIE: Asshole.

ROB: I'd deemed these as the lighthearted ones, but Dawn has certainly
pointed out they're not that lighthearted, but they certainly are
compared to what I'm going to get to. Last one of these is
"Resuscitation;" it's simply called "Resuscitation," this one's funny,
come on.

DAWN: That's what you said about the first one.

ROB: OK, you wait for her to fall asleep, so this is obviously a girl
that you've already had sex with, right.

ARNIE: OK.

ROB: \[laughter\] Then you, \[laughter\] . . .

DAWN: Rob.

ROB: \[laughter\] . . . this is funny. You're going to find this funny.
You put your ass right over her face while she's sleeping \[farting
noise\] and break wind.

DAWN: \[laughter\] That is so wrong.

ROB: \[laughter\] I mean that one's OK.

DAWN: No, that's wrong. \[laughter\]

ARNIE: If she's a deep sleeper . . .

DAWN: \[giggle\]

ROB: Well apparently, if I understand the web sites correctly, which no,
I am not going to be giving those out on the air because they're so
disturbing, um, the trick to getting more points is you have to do it
and it wakes her up.

DAWN: \[gasp\]

ROB: It has to be such a, . . .

DAWN: OK, that is degrading.

ROB: It is.

DAWN: You just gave yourself to this guy, and now he's farting in your
face.

ROB: Um. Yeah. That usually doesn't happen until after you're married.

DAWN: Exactly. And at least married men do it under the covers and then
just, like, "woo," and then fan the sheets.

ARNIE: Oh, but the bad thing is \[laughter\] I'm thinking about the poor
guy who's done this and pushed too hard.

DAWN: \[wailing\]

ROB: Now I do want to point out, um, we're going to get to one . . .

DAWN: Yes. I get it.

ROB: . . . like that, but there are numerous disgusting things that are
involved and unfortunately that bodily function that I really have a
problem with.

ARNIE: I understand. Yeah.

ROB: But, let's move on now toward, what I called this next Section . .
.

DAWN: \[laughter\] That's so mean.

ROB: . . . I have called this next Section "Mainstream Mean," so it's
definitely mean, but it's not nearly as bad as our last grouping.

ARNIE: OK.

ROB: We'll start with the ones we already told you about as a preview
this week, "The Bronco." This is while taking the girl from behind, the
guy reaches around, grabs her breasts as hard as he can . . .

DAWN: Ouch!

ROB: . . . and screams out another girl's name, then he holds on for the
wild bronco ride.

DAWN: Abuse and degrading.

ROB: And of course "The Rodeo" that we told you about, which is just
like that, only rather than calling out another girl's name, he has six
of his friends burst into the room laughing, which still causes the
"bucking bronco" effect.

DAWN: Yes, 'cause she's trying to get him off, because now all the
friends are in the room, which is, of course, degrading.

ROB: Let's move on to some more rather disgusting, "Mainstream Mean"
things that fraternity boys are doing to get into their frats. There is
"The Kennebunkport Surprise." While on the way down to the "Y," the man
secretly fills his cheeks with New England clam chowder, then, while
screaming in disgust, he hurls it between her legs.

DAWN: That's . . . Jesus.

ARNIE: \[laughter\] Where does he get the clam chowder?

ROB: You've got to have this set up ahead of time, and, you know, where
you can reach for something and really get it in your mouth quick, and
then you know you start with the "Y" and after a couple seconds. Arggh .
. .

DAWN: That's childish.

ROB: Yes.

DAWN: That's childish.

ARNIE: Now see, that, to me, would ruin a woman.

DAWN: Yes. \[laughter\]

ROB: That would. You're really not going to enjoy "The New York Style
Taco," which is just like what I just described "The Kennebunkport," but
rather than use the chowder, the man simply barfs between her legs.

ARNIE: \[laughter\]

DAWN: That girl is ruined forever. That is not, I'm serious she, girls
that have that done will never ever let another man at the "Y."

ROB: You betcha.

ARNIE: And you know what? To other men, we would thank this guy because
then we don't have to do any work.

DAWN: Arnie, it shouldn't be work, you should love it.

ROB: I personally do love it and enjoy it but I understand.

ARNIE: I don't mind. I don't mind . . . I'm just looking out for the
guys out there who don't do it. \[laughter\]

DAWN: OK, another reason not to date Arnie.

ARNIE: Rob, if you're a guy, how do you induce yourself? Is it the
finger in the throat or the . . . ?

ROB: Um hm. Well, a guy like me with a gag reflex, all I would have to
do is, yeah, the finger down the throat, or if I had a, like a spoon or
something, . . . that you go if you've been drinking it's that much
easier. But you're right; for some guys it would be tough and maybe they
have to go to ipecac, which is a "vomitant."

DAWN: Oh my God! The poor girls.

ROB: OK. One more in the "Mainstream Mean" Section and then we will get
to the worst. The "Mainstream Mean" final one is "The Ram." Simply
called "The Ram," this is while enjoying her from behind (I noticed a
lot of these things occur with that), now you're standing up from behind
this time.

ARNIE: OK.

ROB: Ah, he takes one of his hands and just starts ramming her head
against the wall \[DAWN gasps\] in rhythmic motion.

DAWN: Abuse.

ROB: Yeah, that's pretty heinous.

DAWN: That's pretty heinous.

ROB: No, they're all heinous. You've made that clear to me and I agree
with you. I agree with you and I'm doing this in degree and I think that
one gets, like, an 8.

DAWN: How are there this many men that want to commit -- want to be this
abusive -- to a woman?

ROB: 'Cause they're young and they've grown up in this society where
it's OK, and you know, they haven't learned yet.

DAWN: What a pussy. What a freaking bastard if you do something like to
a woman. I'm serious. What kind of man are you?

ARNIE: Now Rob, this is just "Mainstream Mean." ?

ROB: That was the last one of "Mainstream Mean," as we move on to the
absolute worst.

ARNIE: Does it say how hard?

DAWN: Arnie!

ARNIE: I'm just wondering.

DAWN: It doesn't matter, . . . \[laughter\]

ARNIE: It's a question.

DAWN: . . .she's not asking for it.

ROB: \[laughter\] And again you may disagree with me that these are the
worst, I just found them to be yesterday as I was rewriting this for
"airable" content. Now, we already told you earlier in the week about a
couple of these: "The Walrus," which involves wrapping up an oral
pleasuring session in the traditional \[farting noise\] way and then
holding her nose and pinching her lips together, which causes an
appearance strikingly similar to that of a tusked walrus.

DAWN: That always feels good when you can't breathe.

ROB: Yeah. That's no good. And "The Cold Lunch" we told you about . . .

ARNIE: My personal favorite one of all time.

ROB: . . .which involves her orally pleasuring her man and he then
vomits on her head, and I did find that to be worse than "The New York
Style Taco" for some reason.

ARNIE: Now.

ROB: On her head.

ARNIE: Do they have "The Kennebunkport" one of those?

ROB: Oh, where you use clam chowder?

ARNIE: Yeah, could you possibly use clam chowder in that?

ROB: Maybe.

DAWN: You know, I prefer clam chowder.

ROB: Yeah. Woof, that's disgusting. OK now, um, um, the five new ones,
and then we'll be done with this, it will be posted on the web site. Um,
we're going to start with "The Dirty Swirly."

DAWN: Oh no.

ROB: Now, once again, you're engaged in, um, "from behind action" . . .

ARNIE: Um hm.

ROB: . . . although it must be done in a bathroom. An apartment
bathroom, not a public one or whatever . . .

ARNIE: Um hum. OK.

ROB: . . . then when ready, he sticks her head into a toilet, which
contains a recently deposited log cabin, simultaneously flushing it, and
that's where you get the "dirty swirly." But you know and . . .

DAWN: \[gasps\]

ROB: . . . you hold her head there.

DAWN: Oh my God!

ROB: I don't think there's supposed to be contact, as I understand it,
between her and the cabin, but you're . . .

DAWN: Oh right, they monitor it; they're real concerned about that.

ARNIE: I've seen a Rocko film where that happened. I don't know if there
was anything in "said toilet," but I have seen the swirly while he's
going to town.

ROB: If that's just a swirly until we can confirm the presence of the
cabin, which makes it "The Dirty Swirly."

ARNIE: I'll have to go back and watch that video.

ROB: And there is also the obvious middle-of-the-road version called
"The Golden Swirly."

ARNIE: Of course. Of course.

DAWN: Yes. Oh God. This is terrible.

ROB: "The Fire Island." This is kind of like that, uh, which one was it,
that "Resuscitation" one. OK, she's sleeping, but rather than simply
passing gas in her face, you, the man, manually pleasures himself, and
then improves her complexion at the end \[farting noise\], if you know
what I mean, while she's still sound asleep.

DAWN: While she's sleeping?

ROB: Yeah.

DAWN: Oh my God.

ROB: Alright, now we get to what I believe are the three really, really,
really bad ones. We're going to start with "The Roddy Piper," which is
an ode to Rowdy Roddy Piper.

ARNIE: Professional wrestler.

ROB: This is how this one works. Once again, you're taking her from
behind men, then the man wraps his arms around her throat, \[DAWN
gasps\] placing her, again without her permission, placing her in the
traditional "sleeper" wrestling hold, . . .

ARNIE: OK.

ROB: . . . cutting off air to the carotid artery.

DAWN: Oh my God!

ARNIE: While still going to town?

ROB: Yes.

ARNIE: OK.

ROB: He maintains the hold until she is unconscious . . .

DAWN: \[gasps\]

ROB: . . . and continues with his business . . .

DAWN: Oh my God.

ROB: . . . reviving her with his own special form of smelly salts
\[farting noise\] on her nose. So did you get all that?

ARNIE: Road trip.

ROB: Road trips and very popular at Spring Break. Those of you that hear
all these terrible stories about Spring Break, here's one. Uh, because
it also must be done on a beach, that's why it's called "The Sand Bag,"
which you will understand in a minute. The man uses a fake name, makes
up an entire story about who he is, and talks her into sex, and of
course uses liquor. Picture Spring Break, a lot of women are there
expecting casual sex.

ARNIE: Exactly.

ROB: And then, just prior to beginning the proceedings, he, without
telling her, removes his condom intentionally . . .

DAWN: \[gasps\]

ROB: . . . when he finishes . . .

DAWN: Oh no.

ROB: . . .he grabs a fist full of sand, he throws it in her face, and he
runs away. She doesn't know who he is, where's he's from, can't see,
can't find him, and doesn't even know still what he did, and if it
"takes."

DAWN: Oh God.

ROB: Now how really . . .

ARNIE: Wow.

DAWN: Not only pregnancy, but diseases.

ROB: Um hm, and no trail.

ARNIE: And you're messing up somebody else's life.

DAWN: Yes.

ROB: A whole new life.

DAWN: Yes.

ARNIE: Yes.

ROB: And her and you know.

ARNIE: Yeah.

DAWN: Yes. Oh! Oh you know what? There needs to be stings, you're right,
I'm serious. Oh God I'd, I would just love to be a cop for a day just to
track down these

m-f'ers.

ROB: Now, the last one I saved for the last just because of the
disgusting factor. The last one is called "The Chili Dog." Now there
were a lot of them like this, I just chose this one.

ARNIE: OK.

ROB: This is "The Chili Dog." This one begins . . . you'll have to get
your visual, with the man seated on the girl's chest, while receiving
the chug-a-lug-a-lug, OK. That's a popular position, right?

ARNIE: Um hm.

ROB: Everybody with me on how this works?

ARNIE: Oh yes, yes, yeah.

ROB: And while that is occurring, he builds a log cabin between her
breasts.

DAWN: \[gasps\].

END OF SEGMENT

**Attachment C**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**STATEMENT OF COMMISSIONER MICHAEL J. COPPS,**

**APPROVING IN PART, CONCURRING IN PART**

*Re: Entercom Sacramento License, LLC, Licensee of Station KRXQ(FM),
Sacramento CA, Notice of Apparent Liability for Forfeiture*

I agree that these broadcasts are indecent in violation of the statute.
Nonetheless, I concur in part because I believe that the Commission
could have assessed a fine that goes beyond a cost of doing business by
imposing a penalty for multiple indecent utterances within at least one
of these programs. This case further highlights the need to address
indecency complaints more expeditiously. These broadcasts occurred
almost two years ago.

**SEPARATE STATEMENT OF KEVIN J. MARTIN**

**APPROVING IN PART, CONCURRING IN PART**

*Re: Entercom Sacramento License, LLC, Licensee of Station KRXQ(FM),
Sacramento CA, Notice of Apparent Liability for Forfeiture (September
22, 2004)*

Consistent with my past statements, I believe we should be fining
broadcasters on a "per utterance" basis.^1^ In this instance, we could
have found several violations within the broadcasts at issue and
therefore could have assessed a larger fine.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

^1^ *See, e.g.*, Separate Statement of Commissioner Martin, *Infinity
Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit,
Michigan*, Notice of Apparent Liability, 18 FCC Rcd. 6915, 6939 (2003)
(urging the Commission to fine violators "per utterance").

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

[^2]: *See* Letter to Charles W. Kelley, Chief, Investigations and
    Hearings Division, Enforcement Bureau, from Complainant, dated
    September 9, 2002; Letter to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, from
    Complainant, dated September 23, 2002; Letter to Charles W. Kelley,
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    from Complainant, dated October 5, 2002; Letter to Sandra Watson,
    Program Analyst, Investigations and Hearings Division, Enforcement
    Bureau, from Complainant, dated February 26, 2003; and E-mail to
    Dana Leavitt, Assistant Chief, Investigations and Hearings Division,
    Enforcement Bureau, from Complainant, dated March 10, 2003.

[^3]: *See* Letter to Entercom Sacramento License, LLC, from Maureen F.
    Del Duca, Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated August 21, 2003. A transcript of each of the program
    segments is appended hereto as Attachment A and B, respectively.

[^4]: Letter to Dana E. Leavitt, Assistant Chief, Investigations and
    Hearings Division, Enforcement Bureau, from Brian M. Madden, Esq.,
    dated October 17, 2003 ("*Response*"). *See also* Letter to David
    Solomon, Chief, Enforcement Bureau, from Brian M. Madden, Esq.,
    dated October 17, 2003, wherein Entercom requests confidential
    treatment of certain documents attached to its *Response*. Because
    the instant *NAL* does not rely on such attached materials, we do
    not herein render a decision on the merits of Entercom's
    confidentiality request. *See also* Letter to Dana E. Leavitt, Esq.,
    Assistant Chief, Investigations and Hearings Division, from Brian M.
    Madden, Esq., dated November 18, 2003.

[^5]: *Response* at 3-4.

[^6]: *Id.* at 4

[^7]: *Id.* at 5.

[^8]: *Id.* at 8-11.

[^9]: *Id.* at note 8.

[^10]: *Id.* at 12.

[^11]: *See* 47 U.S.C. § 326.

[^12]: 18 U.S.C. § 1464.

[^13]: 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*").

[^14]: 47 C.F.R. § 73.3999.

[^15]: *Response* at 3-4.

[^16]: *Infinity Broadcasting Corp. of Los Angeles (KROQ-FM),*
    Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶ 17 (2002) ("a
    licensee may not avoid liability 'by claiming that he doesn\'t know
    what did or did not go out over his station.'\").

[^17]: *Response* at 6.

[^18]: U.S. Const., amend. I; *Action for Children's Television v. FCC*,
    852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT I*").

[^19]: 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*.*

[^20]: *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."); *id.*, 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.").

[^21]: *Infinity Broadcasting Corporation of Pennsylvania,* Memorandum
    Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
    omitted) (citing *Pacifica Foundation*, Memorandum Opinion and
    Order, 56 FCC 2d 94, 98 (1975), *aff'd sub nom. FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978)).

[^22]: *Industry Guidance on the Commission's Case Law Interpreting 18
    U.S.C. §1464 and Enforcement Policies Regarding Broadcast
    Indecency*, Policy Statement, 16 FCC Rcd 7999, 8002, ¶¶ 7-8 (2001)
    *("Indecency Policy Statement")* (emphasis in original).

[^23]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and, with respect to
    Commission decisions, does not encompass any particular geographic
    area. *See WPBN/WTOM License Subsidiary, Inc.,* Memorandum Opinion
    and Order, 15 FCC Rcd 1838, 1841 (2000).

[^24]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 9 (emphasis
    in original).

[^25]: *Id.*, 16 FCC Rcd at 8002-15, ¶¶ 8-23.

[^26]: *Id.,* 16 FCC Rcd at 8003, ¶ 10.

[^27]: *Id.,* 16 FCC Rcd at 8009, ¶ 19 (citing *Tempe Radio, Inc
    (KUPD-FM)*, Notice of Apparent Liability, 12 FCC Rcd 21828 (Mass
    Media Bur. 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))*, Notice
    of Apparent Liability, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
    (forfeiture paid) (same)).

[^28]: *Id.,* 16 FCC Rcd at 8010, ¶ 20 ("the manner and purpose of a
    presentation may well preclude an indecency determination even
    though other factors, such as explicitness, might weigh in favor of
    an indecency finding").

[^29]: *Citicasters Co.(KSJO(FM))*, Notice of Apparent Liability, 15 FCC
    Rcd 19091 (Enf. Bur. 2000) ("joke" that includes patently offensive
    references to incest and sex with children); *Tempe Radio*, 12 FCC
    Rcd 21828 (patently offensive language referring to sexual activity
    with a child); *EZ New Orleans, Inc.*, 12 FCC Rcd 4147 (patently
    offensive references to incest and sexual activity with an infant).

[^30]: *Indecency Policy Statement,* 16 FCC Rcd at 8009.

[^31]: Attachment B, *infra*, at 12.

[^32]: Attachment B, *infra*, at 14*.*

[^33]: Attachment B, *infra*, at 15*.*

[^34]: Attachment B, *infra*, at 18*.*

[^35]: Attachment B, *infra*, at 19*.*

[^36]: *Response* at 9, citing *Letter from Charles W. Kelley, Chief,
    Investigations and Hearings Division, to Charles Giacona,* dated
    April 22, 2002, EB-01-IH-0407/WK.

[^37]: *Response* at 11, citing *Letter from Charles W. Kelley, Chief,
    Investigations and Hearings Division, to Mindy Pierce,* dated
    February 12, 2002, EB-01-IH-0331/GDJ.

[^38]: *Id.* at 4-5. Entercom also cites various unpublished materials
    in which the former Mass Media Bureau, predecessor to the current
    Media Bureau of the Commission, found that certain material was not
    actionably indecent. *Response* at 11. Published decisions,
    including those cited in the Commission's *Indecency Policy
    Statement*, provide guidance indicating that material such as that
    contained in this case is indecent. Thus, even to the extent
    Entercom was aware of these unpublished decisions, we do not believe
    any reliance on them was reasonable.

[^39]: 47 C.F.R. § 73.3999.

[^40]: *Response* at 11-12.

[^41]: *See WPBN/WTOM,* 15 FCC Rcd at 184.

[^42]: *Response* at note 8.

[^43]: *See, e.g., Infinity Broadcasting Corporation of Los Angeles
    (KROQ-FM),* Memorandum Opinion and Order, 17 FCC Rcd 9892 (2002);
    *WQAM License Limited Partnership*, Forfeiture Order*,* 15 FCC Rcd
    2518 (2000)(noting that the Court indicated that broadcast indecency
    regulations were justified based on significant differences between
    the Internet and the broadcast medium and between the standard in
    the statute at issue and the Commission's broadcast indecency
    standard).

[^44]: Entercom cites language from *Ashcroft v. Free Speech Coalition*,
    122 S.Ct. 1389 (2002), a case invalidating provisions of the Child
    Pornography Prevention Act of 1996 ("CPPA"), which criminalized
    non-obscene "virtual" child pornography. The CPPA extended the
    federal prohibition against child pornography to sexually explicit
    images that appeared to depict minors but were produced without
    using any real children. In the text cited, the Court distinguished
    provisions of the CPPA related to "virtual" child pornography from
    constitutionally valid statutory provisions banning actual child
    pornography. Protecting children from exposure to indecent material
    is a compelling governmental interest and courts have not questioned
    or expected proof on the issue of harm. *See Sable Communications*,
    492 U.S. at 126-27. To withstand constitutional scrutiny, however,
    government regulations aimed at promoting this compelling interest
    must be narrowly drawn so as not to unnecessarily interfere with
    First Amendment freedoms. The U.S. Court of Appeals for the D.C.
    Circuit has concluded that a 10 p.m. to 6 a.m. "safe harbor" period,
    during which indecent speech may be legally broadcast, is justified
    as a properly tailored means of vindicating the government's
    compelling interest in the welfare of children. *See ACT III,* 58
    F.3d at 667. *See also FCC v. Pacifica Foundation*, 438 U.S. 726,
    749-50 (1978).

[^45]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^46]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113 (1997),
    *recon. denied* 15 FCC Rcd 303 (1999) ("*Forfeiture Policy
    Statement");* 47 C.F.R. § 1.80(b).

[^47]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^48]: On September 27, 2002, the Commission released a Forfeiture Order
    in the amount of \$12,000 against Entercom Seattle License, LLC,
    licensee of Station KNDD(FM), Seattle, Washington, for broadcasting
    indecent material, in willful and repeated violation of 18 U.S.C. §
    1464 and 47 C.F.R. § 73.3999. *See Entercom Seattle License, LLC*,
    Order of Forfeiture, 17 FCC Rcd 18347 (Enf. Bur. 2002) (application
    for review pending). Entercom and Entercom Seattle License, LLC, are
    both wholly-owned subsidiaries of Entercom Communications Corp.

[^49]: *Id.*; 47 C.F.R. § 1.80. The Commission amended its rules to
    increase the maximum penalties to account for inflation since the
    last adjustment of the penalty rates. The revised amounts 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,* Order*,* 15
    FCC Rcd 18221 (2000).

[^50]: *See* 47 U.S.C. § 312(a). On April 3, 2003, we placed broadcast
    licensees on clear notice that we would consider commencing license
    revocation proceedings in egregious cases involving the broadcast of
    indecent material. *See Infinity Broadcasting Operations, Inc.*,
    Notice of Apparent Liability, 18 FCC Rcd 6915 (2003). But for the
    fact that the material here was broadcast prior to April 3, 2003,
    Entercom might well be facing an adjudicatory hearing to determine
    whether its license for Station KRXQ(FM) should be revoked, rather
    than the instant proposed forfeiture.

[^51]: 47 C.F.R. § 1.80.

[^52]: *See* 47 C.F.R. § 1.1914.