**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. EB-00-IH-0228

)

Citadel Broadcasting Company ) NAL/Acct. No. 200132080057

) Facility ID #11229

Licensee of Station KKMG(FM), )

Pueblo, Colorado )

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: May 31, 2001** **Released: June 1, 2001**

By the Chief, Enforcement Bureau:

## I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that Citadel Broadcasting Company ("Citadel"), licensee of Station
KKMG(FM), Pueblo, Colorado, has apparently violated 18 U.S.C. § 1464 and
Section 73.3999 of the Commission's rules, 47 C.F.R. § 73.3999, by
willfully broadcasting indecent language. Based on our review of the
facts and circumstances in this case, we conclude that Citadel is
apparently liable for a monetary forfeiture in the amount of Seven
Thousand Dollars (\$7,000.00).

# 

# II. BACKGROUND

2\. The Commission received a complaint dated July 18, 2000, concerning
repeated broadcasts of a song entitled "The Real Slim Shady" on Station
KKMG(FM). The complaint included lyrics that the complainant contends
are offensive. After reviewing the lyrics, we issued a letter of inquiry
to the licensee.

3\. In its response, Citadel admits that it broadcast "The Real Slim
Shady" on a "constant basis on or about July 18, 2000,"[^1] but denies
that it aired the version quoted by the complainant. Citadel claims that
the station actually broadcast a "radio edit" version that omitted
certain offensive language through the use of a muting device or
overdubbed sound effect.[^2] Citadel submitted a copy of the edited
lyrics that it claims the station actually broadcast and argues that
those lyrics are not indecent.

**III. DISCUSSION**

4\. Section 503(b)(1) of the Communications Act (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 \-\--
>
> ...
>
> \(D\) 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.

18 U.S.C. § 1464 provides criminal penalties for anyone who "utters any
obscene, indecent or profane language by means of radio communication."
As explained below, we believe even that the version of "The Real Slim
Shady" that Citadel claims to have broadcast over KKMG(FM) contains
indecent material and that the licensee's broadcast thereof was willful
and repeated.

5\. The Commission has defined indecent speech as language 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]{.underline}, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (*citing* [Pacifica Foundation]{.underline}, 56 FCC 2d 94, 98
(1975), *aff'd sub nom*. [FCC v. Pacifica Foundation]{.underline}, 438
U.S. 726 (1978). The Commission's authority to restrict the broadcast of
indecent material extends to times when there is a reasonable risk that
children may be in the audience. [Action for Children's Television v.
FCC]{.underline}, 852 F.2d 1332 (D.C. Cir. 1988). Current law holds that
such times begin at 6 a.m. and conclude at 10 p.m. [Action for
Children's Television v. FCC]{.underline}, 58 F.3d 654 (D.C. Cir. 1995),
*cert. denied*, 116 S.Ct. 701 (1996).

6\. After carefully considering the record before us, it appears that
Citadel violated our indecency rule with respect to the broadcast of the
edited version of "The Real Slim Shady." Moreover, Citadel does not
claim that its broadcast of the song was limited to the time period of
10 p.m. until 6 a.m. The edited version of the song contains
unmistakable offensive sexual references. In this regard, portions of
the lyrics contain sexual references in conjunction with sexual
expletives that appear intended to pander and shock. [See]{.underline}
Attachment. As we have previously explained, "the context in which
material is offered is essential to making a determination as to whether
material is indecent." [See]{.underline} [In the Matter of Industry
Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency]{.underline}
("[Indecency Policy Statement]{.underline}"), \_\_\_ FCC Rcd \_\_\_ at
para. 9 (FCC 01-90, released April 6, 2001), *citing* [WPBN/WTOM License
Subsidiary, Inc.]{.underline}, 15 FCC Rcd 1838, 1841 (2000). Moreover,
unlike the news story concerning organized crime boss, John Gotti, there
is nothing about the context of "The Real Slim Shady" which removes the
material from the realm of indecency.[^3] In sum, the lyrics the
licensee admits were aired are inappropriate for broadcast during times
when children may be in the audience. The Commission previously has
found similar material to be indecent,[^4] and we see no basis for
finding otherwise in this case.

7\. We find also that the broadcast of the edited version of "The Real
Slim Shady" was willful and repeated. Citadel does not dispute that the
song was played repeatedly throughout the spring and summer months of
2000. Although Citadel contends that it attempted to render the song
suitable for broadcast through editing, we believe that the licensee
failed to purge a number of indecent references.

8\. Section 503(b) of the Act, 47 U.S.C. § 503(b), and Section 1.80 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 Act or the Commission's
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 that
it was taking the general action in question, without regard to any
specific intent to violate the Commission's rules.[^5] As explained
above, Citadel knew that KKMG(FM) was broadcasting "The Real Slim
Shady." In assessing a monetary forfeiture, we take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act. Those
factors include 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.[^6]

9\. The Commission's [Forfeiture Guidelines]{.underline} set a base
forfeiture amount of \$7,000 for transmission of indecent or obscene
materials.[^7] After considering all the facts and circumstances, we
believe the base forfeiture amount is the appropriate sanction and that
neither an upward nor downward adjustment should be made.

**IV. ORDERING CLAUSES**

10\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^8] and Sections 0.111, 0.311 and 1.80 of the Commission\'s
rules,[^9] Citadel Broadcasting Company is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of Seven Thousand
Dollars (\$7,000.00) for willfully violating the 18 U.S.C. § 1464 and
Section 73.3999 of the Commission\'s rules.

11\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission\'s rules,[^10] within thirty days of this NOTICE OF APPARENT
LIABILITY, Citadel Broadcasting Company SHALL PAY 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 the Charles W. Kelley,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 3-B443,
Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced
above.

14\. 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.

15\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^11]

16\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail \-- Return Receipt Requested
to Elizabeth E. Goldin, Esq., Counsel for Citadel Broadcasting Company,
1776 K Street, N.W., Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**[ATTACHMENT]{.underline}**

Radio Station: KKMG(FM), Pueblo, Colorado

Date/Time Broadcast: May through July 2000

Material Broadcast: "The Real Slim Shady" (excerpts from song lyrics)

Various voices, including the recording artist, Eminem:

Feminist women love Eminem

(Eminem's vocal turntable sound effect: "sicka sicka sicka") Slim Shady,
I'm sick of him

Look at him, walking around grabbin' his you know what, flippin' the you
know who

"Yeah, but he's so cute, though"

Yeah, probably got a couple of screws up in my head loose

But the worse is what's going on in your parents' bedroom

Sometimes I want to get on TV and just let loose, but can't

But it's cool for Tom Green to hump a dead moose:

"My bum is on your lips

My bum is on your lips"

And if I'm lucky you might just give it a little kiss

And that's the message we deliver to little kids

And expect them not to know what a woman's BLEEP is

Of course, they're gonna know what intercourse is

by the time they hit fourth grade

They got the Discovery Channel, don't they?

"We ain't nothin' but mammals"

Well, some of us cannibals

\* \* \* \* \* \* \* \* \* \*

It's funny cause at the rate I'm goin'

When I'm 30 I'll be the only person in the nursing home flirting

Pinching nurses asses when I'm BLEEP or jerkin'

Said I'm jerkin' but this whole bag of Viagra isn't workin'

[^1]: Citadel admits that it broadcast the song approximately 408 times
    during the period May through July 2000.

[^2]: Citadel contends that the complainant did not transcribe those
    lyrics from the actual broadcast, but instead retrieved them from an
    Internet website.

[^3]: *See* [Peter Branton]{.underline}, 6 FCC Rcd 610 (1991)
    (subsequent history omitted).

[^4]: *See, e.g.,* [WQAM License Limited Partnership]{.underline}, 15
    FCC Rcd 2518, *recon. denied*, 15 FCC Rcd 15349 (2000) ("The Girl
    from Ipanema" parody).

[^5]: *See* [Jerry Szoka]{.underline}, 14 FCC Rcd 9857, 9865 (1999)
    *recon. denied*, 14 FCC Rcd 20147 (1999) *petition for review
    pending sub nom.* [Grid Radio and Jerry Szoka v. FCC]{.underline},
    No. 99-1463 (D.C. Cir. November 17, 1999); [Southern California
    Broadcasting Co.]{.underline}, 6 FCC Rcd 4387 (1991).

[^6]: 47 U.S.C. § 503(b)(2)(D). *See also* [The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines]{.underline}, 12 FCC Rcd
    17087, 17100-01 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("[Forfeiture Guidelines]{.underline}").

[^7]: [Forfeiture Guidelines]{.underline}, *supra* note 3, 12 FCC Rcd at
    17113.

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^10]: 47 C.F.R. § 1.80.

[^11]: *See* 47 C.F.R. § 1.1914.