Before the

Federal Communications Commission

Washington, D.C. 20554

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| **COMMUNICAST CONSULTANTS, INC.** | )                                 |
|                                   |                                   |
| Licensee of Station KRXK(AM)      | ) Control No. CN9900724           |
|                                   |                                   |
| Rexburg, Idaho                    | ) NAL/Acct. No. X32080018         |
|                                   |                                   |
|                                   | ) Facility No. 12664              |
|                                   |                                   |
|                                   | ) JJS                             |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+

## [FORFEITURE ORDER]{.underline} {#forfeiture-order .unnumbered}

**Adopted: October 11, 2000 Released: October 12, 2000**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this forfeiture order, we impose a seven thousand dollar
    (\$7,000) forfeiture against Communicast Consultants, Inc. ("CCI"),
    licensee of KRXK(AM), Rexburg, Idaho. We find that CCI violated 18
    U.S.C. §1464 and Section 73.3999 of the Commission's rules, 47
    C.F.R. § 73.3999, by broadcasting indecent material.

2.  On July 14, 2000, the Chief, Enforcement Bureau, issued a Notice of
    Apparent Liability for Forfeiture in the amount of seven thousand
    dollars (\$7,000) against CCI. *Communicast Consultants, Inc.*, DA
    00-1567 (released July 14, 2000) ("NAL"). CCI filed its response on
    September 7, 2000.

# Background

3.  The Commission received a complaint alleging that CCI broadcast
    indecent material during a Spanish-language call-in talk show on or
    about January 12, 1999, between 8 a.m. and 10 a.m. A transcript of
    the broadcast in question was attached to the NAL. We issued letters
    of inquiry, asking CCI to comment on the complaint. CCI responded to
    our inquiries, asserting that the material is not indecent and
    asking that it be allowed to provide a certified English translation
    of the Spanish program if the Commission decided to pursue this
    matter further. On May 23, 2000, we asked CCI to provide a certified
    translation. In a phone conversation with Commission staff on June
    14, 2000, counsel authorized to speak on behalf of CCI stated that
    CCI accepts the transcript provided in the letter of inquiry and
    would not be filing a certified translation.

# Discussion

4.  In arguing in its response that the material was not indecent, CCI
    claims that the broadcast used "correct anatomical terms" that would
    be heard in any clinical or instructional course on human sexuality.
    CCI asserts that the material was not patently offensive and that
    the NAL failed to consider adequately the context of the
    conversation. Additionally, CCI argues that the NAL is defective
    because it did not make any findings concerning the contemporary
    community standards of the Spanish-speaking community in the
    Rexburg, Idaho, area. According to CCI, nearly all children in the
    Rexburg area would have been in school when the program was
    broadcast and the Commission has not demonstrated that any children
    heard the broadcast. CCI claims that even if the program were
    indecent, there was no willful violation because the programming was
    received by satellite and the station had no way of knowing what
    would be broadcast. It also asserts that approximately thirty other
    stations broadcast the program in question and that the Commission
    has engaged in "selective enforcement" by taking action only against
    KRXK(AM). Finally, CCI argues that a \$7,000 forfeiture exceeds the
    profits KRXK(AM) has earned during the period CCI has been the
    licensee and that such a forfeiture would be "economically
    [crippling]{.underline}." (Emphasis in Original).

5.  First, we reject CCI's argument that the material was not indecent.
    The Commission defines broadcast 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),
    *aff'd* 3 FCC Rcd 930 (1987)(subsequent history omitted)(citing
    *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978)). CCI does not
    dispute that the material discusses sexual activities, but it denies
    that the material is "patently offensive." While the use of certain
    terms does not automatically make material indecent, we believe the
    graphic sexual references, as well as the announcer's comments,
    laughter, and jokes, show that the material was offered in a
    pandering, titillating manner, rendering the material "patently
    offensive."

6.  CCI's argument that the Commission must have evidence about the
    community standards of the Spanish-speaking community in the Rexburg
    area in order to find an indecency violation is incorrect. The
    Commission's interpretation of the term "contemporary community
    standards" is consistent with the definition set forth in the
    Supreme Court's decision in *Hamling v. United States*, 418 U.S. 87
    (1974), *reh'g denied*, 419 U.S. 885 (1974). In that case, which
    involved obscenity, "the Court explained that the purpose of
    'contemporary community standards' was to ensure that material is
    judged neither on the basis of a decisionmaker's personal opinion,
    nor by its effect on a particularly sensitive or insensitive person
    or group." *Infinity Broadcasting Corporation of Pennsylvania
    (WYSP(FM))*, 3 FCC Rcd 930, 933 (1987) (subsequent history omitted),
    *citing* 418 U.S. at 107. The Court stated that decisionmakers need
    not use any precise geographic area in evaluating material. 3 FCC
    Rcd at 933, *citing* 418 U.S. at 104-05. Consistent with *Hamling*,
    the Commission's evaluation of allegedly indecent material is "not
    one based on a local standard, but one based on a broader standard
    for broadcasting generally." 3 FCC Rcd at 933. We also reject CCI's
    suggestion that we should not take enforcement action because most
    children would be in school during the time of the broadcast.
    Congress has directed the Commission to enforce the ban on indecent
    broadcasts during the morning time period at issue in this case, and
    the United States Court of Appeals for the District of Columbia
    Circuit has upheld that directive. *See* *Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1341 (D.C. Cir. 1988).

7.  CCI may not correctly contend that the violation was not willful
    because the program was a syndicated program received by satellite
    and the station had no way of knowing what would be broadcast. 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). In this case,
    CCI knew it was broadcasting the program. The Commission has
    emphasized "that the licensee is ultimately responsible for all
    programming aired on its station, regardless of its source."
    *Revision of Radio Rules and Policies*, 7 FCC Rcd 6387, 6401 (1992).
    Moreover, CCI could have used a delay mechanism to monitor the
    broadcast to ensure that inappropriate material was not aired. Since
    CCI knowingly broadcast the program, its actions were willful within
    the meaning of the statute.

8.  We also reject the argument that our decision to issue an NAL
    represents improper "selective enforcement." As is the case with
    virtually all of our indecency cases, we initiated this
    investigation in response to a complaint filed against KRXK(AM). If
    we had received complaints against other stations that had broadcast
    the same program, we would have similarly initiated an investigation
    and taken appropriate enforcement action. Congress has directed us
    to enforce the restrictions on broadcast indecency, and CCI has not
    shown that it was treated differently than any other station against
    which a complaint was filed.

9.  Finally, we cannot accept CCI's claim that a \$7,000 forfeiture
    would be "economically crippling" to station operations. CCI did not
    provide any financial documentation to support that claim. Moreover,
    after the NAL was released, CCI received authorization to assign the
    license for KRXK(AM) to Pacific Empire Holdings Corp. *See* File No.
    BAL-20000403ABH, granted July 25, 2000. CCI has not shown that it
    would be unable to pay the forfeiture from the proceeds of the sale.
    Moreover, once CCI closes on the sale, the forfeiture will no longer
    have an impact upon station operations. After reviewing all of the
    factors required by Section 503(b)(2)(D) of the Act, we believe a
    \$7,000 forfeiture is appropriate in this case.

# Ordering Clauses

10. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act, 47 U.S.C. § 503(b), and Sections 0.111, 0.311 and 1.80(f)(4) of
    the Commission\'s rules,[^1] Communicast Consultants, Inc. IS LIABLE
    FOR A MONETARY FORFEITURE in the amount of seven thousand dollars
    (\$7,000), for its willful violation of 18 U.S.C. § 1464 and Section
    73.3999 of the Commission\'s rules, 47 C.F.R. § 73.3999.

11. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's rules within 30 days of the
    release of this Forfeiture Order. If the forfeiture is not paid
    within the period specified, the case may be referred to the
    Department of Justice for collection pursuant to Section 504(a) of
    the Act, 47 U.S.C. § 504(a). Payment may be made by mailing a check
    or similar instrument, payable to the order of the Federal
    Communications Commission, to the Federal Communications Commission,
    P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should
    note the NAL/Acct. No. referenced above. Requests for full payment
    under an installment plan should be sent to: Chief, Credit and Debt
    Management Center, 445 12th Street, S.W., Washington, D.C. 20554.
    *See* 47 C.F.R. § 1.1914.

12. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Communicast Consultants,
    Inc. 341 West 1500 North, Rexburg, Idaho 83440.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).