Before the

Federal Communications Commission

Washington, D.C. 20554

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| **Citicasters Co.**               | )                                 |
|                                   |                                   |
| Licensee of Station KSJO(FM)      | ) Control No. EB-00-IHD/99090359  |
|                                   |                                   |
| San Jose, CA                      | ) NAL/Acct. No. X32080031         |
|                                   |                                   |
|                                   | ) Facility #4117                  |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+

## [NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline} {#notice-of-apparent-liability-for-forfeiture .unnumbered}

**Adopted: September 25, 2000 Released: September 26, 2000**

By the Chief, Enforcement Bureau:

# Introduction

# In this Notice of Apparent Liability for Forfeiture, we find Citicasters Co. ("Citicasters"), licensee of Station KSJO(FM), San Jose, CA, apparently liable for a forfeiture in the amount of seven thousand dollars (\$7,000) for a violation of 18 U.S.C. § 1464 and Section 73.3999 of the Commission's rules, 47 C.F.R. § 73.3999, by broadcasting indecent material. 

# Background

1.  The Commission received information indicating that Station
    KSJO(FM), San Jose, CA, may have violated 18 U.S.C. § 1464 by
    broadcasting allegedly indecent material when it aired a "joke" on
    August 25, 1999, at approximately 1:15 p.m. Attached is a transcript
    of the "joke" that is the subject of this action. We issued a letter
    of inquiry, asking Citicasters to comment on the complaint.
    Citicasters responded to our inquiry on July 7, 2000.

# Discussion

2.  Section 503(b)(1)(D) of the Act provides in pertinent part:

> Any person who is determined by the Commission, in accordance with
> paragraph (3) or (4) of this subsection, to have -- violated any
> provision of section 1304, 1343, or 1464 of title 18, United States
> Code; shall be liable to the United States for a forfeiture penalty.

3.  Pursuant to 47 U.S.C. §§ 312(a)(6) and 503(b)(1)(D), the Commission
    has statutory authority to take appropriate administrative action
    when licensees broadcast material in violation of 18 U.S.C. § 1464,
    which provides criminal penalties for anyone who \"utters any
    obscene, indecent or profane language by means of radio
    communication.\"

4.  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)). The United
    States Court of Appeals for the District of Columbia Circuit has
    upheld the Commission\'s authority to restrict the broadcast of
    indecent material at times when there is a reasonable risk that
    children may be in the audience. *Action for Children's
    Television v. FCC*, 852 F.2d 1332 (D.C. Cir. 1988). The court
    subsequently concluded that a 10:00 p.m. to 6:00 a.m. \"safe
    harbor\" was justified as a properly tailored means of vindicating
    the government\'s compelling interest in the welfare of children.
    *Action for Children's Television v. FCC,* 58 F.3d 654 (D.C. Cir.
    1995), *cert. denied*, 116 S. Ct. 701 (1996) (*ACT III*).

5.  In response to our inquiry, Citicasters admits that the "joke" is
    crude, and it states that the on-air talent involved was reprimanded
    for airing such material. Citicasters argues, however, that the
    "joke" is not indecent because "it does not describe sexual
    activities or organs in terms patently offensive as measured by
    contemporary community standards." Instead, Citicasters claims that
    the "joke" "relies simply on innuendo, the sexual import of which is
    not inescapable." We reject Citicasters' arguments. The Commission
    has repeatedly held that "innuendo may be patently offensive within
    the meaning of our indecency definition if it is understandable and
    clearly capable of a specific sexual or excretory meaning which, in
    context, is inescapable." *San Francisco Century Broadcasting,
    L.P.*, 8 FCC Rcd 498 (1993). We believe the "punch line" of the
    "joke" is an inescapable reference to incest and sex with children.
    Citicasters does not offer any alternative interpretation under
    which the "joke" is not referring to sexual activities in a patently
    offensive manner. Under these circumstances, it appears that the
    excerpt contains language that describes sexual activities or organs
    in patently offensive terms. Because the material aired at
    approximately 1:15 p.m., when there was a reasonable risk that
    children may have been in the audience, it is legally actionable.
    Thus, it appears that on August 25, 1999, at approximately 1:15
    p.m., Station KSJO(FM) violated 18 U.S.C. § 1464 and Section 73.3999
    of the Commission's rules by airing indecent programming.

6.  Section 503(b) of the Communications Act of 1934, as amended, (the
    "Act"), 47 U.S.C. § 503(b), and Section 1.80(a) of the Commission's
    rules, 47 C.F.R. § 1.80(a), both state that any person who willfully
    or repeatedly fails to comply with the provisions of the Act or the
    rules shall be liable for a forfeiture penalty. For purposes of
    Section 503(b) of the Act, the term "willful" means that the
    violator knew it was taking the action in question, irrespective of
    any intent to violate the Commission's rules. *See Southern
    California Broadcasting Co*., 6 FCC Rcd 4387 (1991).

7.  The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^1] The *Forfeiture Policy Statement* also specifies that
    the Commission shall adjust a forfeiture based upon consideration of
    the factors enumerated in Section 503(b)(2)(D) of the Act, 47 U.S.C.
    § 503(b)(2)(D) such as "the nature, circumstances, extent and
    gravity of the violation, and, with respect to the violator, the
    degree of culpability, any history of prior offenses, ability to
    pay, and such other matters as justice may require."[^2] After
    reviewing all of the circumstances, we believe a \$7,000 forfeiture
    is appropriate in this case.

# Ordering Clauses

8.  ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311,
    and 1.80 of the Commission's rules,[^3] that Citicasters Co. is
    hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
    amount of seven thousand dollars (\$7,000) for willfully violating
    Section 503(b)(1)(D) of the Communications Act of 1934, as amended,
    and Section 73.3999 of the Commission's rules.

9.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty days of the release of this Notice,
    Citicasters SHALL PAY to the United States the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

10. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to 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.

11. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the file number listed above.

12. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Citicasters' counsel,
    John M. Burgett, Esq., Wiley, Rein & Fielding, 1776 K Street, N.W.,
    Washington, DC 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Attachment

Radio Station: KSJO(FM), San Jose, CA

Date/Time Broadcast: August 25, 1999, at approximately 1:15 p.m.

Material Broadcast: "Joke"

99090359

ksjoaa

Complainant states:

> A little girl comes into the bathroom where Mommy is taking a shower.
> The little girl points to Mommy and asks, "what's that?" Mommy says,
> "that's my vagina." The little girl asks, "when do I get one of
> those?" Mommy says, "when you get older." The little girl comes into
> the bathroom where Daddy is taking a shower she points to Daddy and
> asks, "what's that?" The Daddy says, "that's my penis." The little
> girl asks, "when do I get one of those?" The Daddy says, "**[as soon
> as Mommy goes to work]{.underline}**. " .

[^1]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Commission's Rules*, 12 FCC Rcd 17087, 17113
    (1997), *recon. denied* 15 FCC Rcd 303 (1999) (*Forfeiture Policy
    Statement);* 47 C.F.R. § 1.80(b).

[^2]: 12 FCC Rcd at 17110.

[^3]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.