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         |
|                                   |                                   |
|                                   | ) ID \# 12664                     |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+

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

**Adopted: July 13, 2000 Released: July 14, 2000**

By the Chief, Enforcement Bureau

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find
    Communicast Consultants, Inc. ("CCI"), licensee of Station KRXK(AM),
    Rexburg, ID, 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 503(b)(1)(D) of the Communications Act of 1934, as
    amended (the "Act"),[^1] and Section 73.3999 of the Commission's
    rules, 47 C.F.R. § 73.3999, by broadcasting indecent material.

# Background

2.  The Commission received information indicating that Station
    KRXK(AM), Rexburg, ID, may have violated 18 U.S.C. § 1464 by
    broadcasting allegedly indecent material during a Spanish language
    call-in talk show on or about January 12, 1999, between 8 a.m. and
    10 a.m. Attached is a transcript of those portions of the allegedly
    indecent broadcast that are the subject of this action, taken from a
    tape submitted by the complainant. 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

3.  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.

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

5.  The Commission 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*).

6.  In response to our inquiries, CCI states that the call-in talk show
    in question is a syndicated program carried by station KRXK(AM). CCI
    acknowledges that the program at issue was "spicy" or "racy."
    However, CCI argues that the "program was aired on a week-day
    morning, when little people, (those under 17 ±) would be in school"
    and that it "was intended for adults." CCI asserts that while
    "indelicate," the material was not indecent. CCI contends that the
    program's "freely sensual and creative approach to marital relations
    . . . could assist listening couples in bringing freshness into
    their marriage." CCI describes the overall message of the
    programming as "pro-strong marriage" and "pro-family." Finally, CCI
    notes that while it does not believe the material was indecent, the
    program in question was terminated upon receipt of the Commission's
    letter of inquiry.

7.  We are not persuaded by CCI's arguments. The program was broadcast
    between 8 a.m. and 10 a.m., a time when there is a reasonable risk
    that children may be in the audience. Moreover, as discussed above,
    our authority to restrict the broadcast of indecent material during
    this time period has been specifically upheld by United States Court
    of Appeals for the District of Columbia Circuit in *ACT III*.
    Additionally, the cited language dwells at length on specific sexual
    activities and organs and the program host encourages the caller to
    be very graphic and explicit about her techniques for seducing her
    husband. We find that such a graphic description of sexual
    activities and organs, in this context, is actionably indecent.
    *Citicasters Co. (WXTB(FM))*, 13 FCC Rcd 22004 (1998), *forfeiture
    imposed* , FCC 00-230 (released June 27, 2000).

8.  It appears that the subject excerpts are indecent in that they
    contain language that describes sexual activities or organs in
    patently offensive terms. Because the material aired between 8 a.m.
    and 10 a.m., when there was a reasonable risk that children may have
    been in the audience, it is

    legally actionable. Thus, it appears that on or about January 12,
    1999, Station KRXK(AM), violated 18 U.S.C. § 1464 by airing indecent
    programming.

9.  Section 503(b) of the Act[^2] and Section 1.80(a) of the
    Commission's rules[^3] 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.[^4]

10. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^5] 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,[^6] 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."[^7] After reviewing all of the circumstances,
    we believe a \$7,000 forfeiture is appropriate in this case.

# Ordering Clauses

11. 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,[^8] that Communicast
    Consultants, Inc. 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.

12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty days of the release of this Notice, CCI
    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.

13. Payment of the forfeiture may be made by credit card through the
    Commission\'s Credit and Debt Management Center at (202) 418-1995 or
    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.

14. 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.

15. 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, ID 83440.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Attachment

Radio Station: KRXK(AM), Rexburg, ID

Date/Time Broadcast: On or about January 12, 1999, between 8 a.m. and 10
a.m.

Material Broadcast: Call-In Talk Show

CN9900724

krxka

AN: Announcer

LU: Lucy (Caller)

OL: Voice impersonating an old lady

\* \*

AN: Of course, my pet, Lucy. What is your \"whip lash\"?

LU: Well, my \"whip lash\" is the following: I am married to a person
outside my culture. He is North American. And fortunately he is a man
who is too, mm, lit up, if you can call it that. And I am tired of
hearing from people who complain about their husbands. That they don\'t
please them. In my case, it\'s not like that. We have a game called
\"the seduction.\"

AN: The seduction. But tell me about that game. Take notes, please. The
game of \"the seduction\" it\'s called. (Laughter). No, you know what,
there are different games in this thing of love that could help us, help
many couples to change the routine, to change the monotony, the every
day. So, tell us.

LU: Exactly. We do very different things. We don\'t do everything always
repeated, repeated, repeated. Because it\'s very boring. He is a person,
well, most North Americans are of very, very open minds. And I have
learned a lot from him. And also, of course, he likes the Latin heat.
And the game consists of, when he gets home from work. Every day, I buy
\"baby dolls.\" (Lingerie).

AN: Baby dolls?

LU: Yes.

AN: OK.

LU: It\'s a different one every night. Then, he generally likes the
black one. When he arrives tired he lies down on a sofa and closes his
eyes and I approach very, very slowly and I begin to kiss his forehead,
his eyes, the nose, and like that I start down.

AN: Until where? (Laughter).

LU: The thing is, the game consists of not approaching so aggressively.
Rather, it is softly.

AN: Ah. Softly.

LU: Softly. Then he embraces me. But I already have on my bed rose
petals.

AN: Rose petals.

LU: Spread all over.

AN: Ah, ha.

LU: Candle with vanilla smell.

AN: How wonderful!

LU: With vanilla smell. With saxophone music.

AN: That is, a little classic jazz. Soft.

LU: Yes.

AN: Romantic. Sexy.

LU: Exactly. There is a North American artist called Kenny G.

AN: Kenny G. The one with the clarinet.

LU: Uh, huh. That is perfect for that occasion.

KRXK(AM) 2.

AN: Dona Mela plays the clarinet well. (Laughter). Let me explain
something to you, Lucy. She played for many years with (Unintelligible
name) and she played the clarinet.

OL: The cornet, son.

AN: She also plays the cornet, the trombone. (Laughter). Indeed, the
same as Monica Lewinsky. Well, OK. Monica Lewinsky tacos, by the way,
are now out there. You know which ones, Dona Mela?

OL: Which ones, son?

AN: The ones of tongue. (Laughter). And, Dona Mela, the new Bill Clinton
tacos? The ones made of tripe (Innards). (Laughter). Hey, my pet, you
were saying?

LU: Then we go to the bedroom and I have there, in front, ice,
strawberries and whipped cream.

AN: Hey, my love, it looks like you have there, ready to sell juice.
Well, OK, you have told me\... strawberries.

LU: Strawberries.

AN: Strawberries.

LU: And cream. Like you put on ice cream.

AN: Oh, yes, a flavored cream. Hey, that cream, what do you use it for?
I have never used that.

LU: You have never used it? (Laughter)

AN: To tell the truth, yes, I used it. My old lady wanted a snow. I
don\'t know what. A big white snow. Giant. (Laughter).

LU: Then I tie him on the bed.

AN: You tie him on the bed?

LU: I tie him. With some \"handcuffs\" (In English).

AN: Handcuffs (In Spanish).

LU: Handcuffs (In Spanish).

AN: Doesn\'t he get desperate when you tie him?

LU: No. He loves it.

AN: Don\'t tell me!

LU: It excites him more.

AN: Oh, dear.

LU: Then. He loves it, that I tied him up. And then I begin to rub the
ice all over his chest.

AN: All over his chest.

LU: Yes. And it is melting.

AN: The ice or him?

LU: (Laughter). Both. Because he with his excitement melts it much more.

AN: Hey, does it excite you to see him excited?

LU: Oh, yes.

AN: While you are rubbing him with the ice, what are you doing?

LU: It\'s a sensation. My heart accelerates, and, and, I don\'t know. I
begin to eat him. I put the strawberries on top of him and one by one I
proceed to eat them.

AN: How wonderful!

LU: Yes. One by one. And in his intimate part, the one that excites the
most, right?

AN: Of course.

LU: I put.

AN: You put it on the penis?

LU: On the penis. I put some four strawberries.

KRXK(AM) 3.

AN: Where? How do you put them on him, huh?

LU: That is, in a row.

AN: Oh, my! And what, do you put the cream on first and not on top of
the strawberries?

LU: Yes. Then\...

AN: Oh, my!

LU: One by one I start to eat them, no?

AN: Hey, what if you make a mistake one of these days and you take a
bite and instead of taking it from the strawberries, you take it from
there, where. (Laughter). You have to proceed carefully, right?

LU: He likes it for me to bite it.

AN: He likes it for you to bite it?

LU: Yes.

AN: Eeeeeehhh!! (Laughter). (Unintelligible).

LU: He asks me: \"Bite it, bite it.\"

AN: He tells you that? Hey, do you bite it hard or slow?

LU: That is, I bite it in a way that it doesn\'t hurt, but rather,
excites him.

AN: Oh, my! Inside?

LU: (Unintelligible). Yes. And he does the same with me.

AN: He also bites you?

LU: Uh, huh.

AN: Where does he bite you?

LU: He bites me on the breast.

AN: On the breasts?

LU: Yes.

AN: Doesn\'t it hurt you? Aren\'t you very sensitive?

LU: At first, yes. But I told him to be more, mm.

AN: Delicate?

LU: More delicate.

AN: Softer.

LU: Because one has more sensitivity there.

AN: It\'s very sensitive. The nipples are very sensitive.

LU: Yes. And since they are big, mm. He puts two strawberries there and
he proceeds to eat them like that also.

AN: Oh, how wonderful! (Laughter).

LU: He also has cream there.

AN: Where, between your legs?

LU: Between my legs, and on my whole body and with his tongue he
proceeds to remove all of it.

AN: Oh, my! Hey, tell me one thing. I want to ask you one thing.
(Unintelligible). Asking here off the air, about the women that have too
much pubic hair.

LU: He loves it. But I look for a way to shave myself.

AN: Oh, you shave yourself. All over?

LU: All over, all over.

AN: All over. It\'s better.

LU: It\'s much better.

AN: It\'s more hygienic.

KRXK(AM) 4.

LU: Yes. It\'s much more hygienic and also it looks ugly. (Laughter).

AN: What looks ugly? With pubic hair or without hair?

LU: There are women that have too much, others, no. That is, generally,
I leave a very little bit only.

AN: Uh, huh.

LU: And then, mm, God made me very voluptuous.

AN: Uh, huh.

LU: I have lots of curves.

AN: Wow!

LU: And in that part I also have it very big.

AN: Oh, my! That is. (Unintelligible).

LU: Yes. Everything is big. (Unintelligible). Big, everything big. And
my husband, well, although he is North American, he is tall, he also has
his, his parts big. The only thing we have problems with is that his
penis is curved.

AN: His what?

LU: His penis.

AN: Is there some problem with it being curved?

LU: Mm, what happens is that, mm, he has to grab it first so that it
doesn\'t come out.

AN: Towards the top or the bottom?

LU: The top.

AN Look it. Let\'s not talk about that anymore because we are going to
talk about that next Monday on \"The Whip Lash\", because it\'s a good
topic, that. Because we have never talked about that, huh? Then that\'s
your only problem.

LU: Yes.

AN: But, regarding everything else, you are very happy.

LU: Regarding everything else we are very happy.

AN: And you change the routine and you change the same way?

LU: Exactly. He. We have a game all the time. He makes up all kinds of
things. The best thing of all is to keep the flame of love. That is, we
do it in the kitchen, in the bedroom. That is, one day we did it in the
post office. (Laughter).

AN: In the post office?

LU: In the post office.

AN: Don\'t tell me! In the post office! (Laughter).

LU: Yes.

AN: Hey, it must have been exciting, no?

LU: Quite a bit, quite a bit. That is, we do it in unusual places.

AN: Forbidden.

LU: Forbidden, more than anything. But, the thing is that he is a man
who is very, very, you would think he is Latin. Because he is very
passionate. I am also the same. That is, we both are.

AN: Hey, know what? I am going to tell you something, Lucy. I think you
are doing the right thing. I congratulate you. And if you keep on like
that you will keep your husband and you will keep your marriage very
well and you will keep your love alive and that is very good, to make
combinations, to have contests, and to do many things differently from
those you do every day. Lucy, may God bless you. Have a good weekend.

LU: Thank you very much. May God bless you and may you continue your
success always.

AN: I hope you keep calling.

\* \*

[^1]: 47 U.S.C. § 503(b)(1)(D).

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R § 1.80.

[^4]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387 (1991).

[^5]: *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).

[^6]: 12 FCC Rcd at 17110.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.