**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-01-IH-0395       |
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| Entercom Seattle License, LLC    | ) | NAL/Acct. No. 200232080005   |
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| Licensee of Station KNDD(FM),    | * | FRN 0003-2457-19             |
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| Seattle, Washington              | * | Facility ID \# 34530         |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** January 25, 2002 **Released:** January 28, 2002

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Entercom Seattle License, LLC ("Entercom"), licensee of Station
    KNDD(FM), Seattle, Washington, apparently violated 18 U.S.C. § 1464
    and 47 C.F.R. § 73.3999, by willfully and repeatedly broadcasting
    indecent language. Based upon our review of the facts and
    circumstances in this case, we conclude that Entercom is apparently
    liable for a forfeiture in the amount of fourteen thousand dollars
    (\$14,000).

    **II. BACKGROUND**

2.  The Commission received a complaint that KNDD(FM) broadcast indecent
    material on May 30, 31 and June 1, 2001. The complainant described
    the material broadcast, and after reviewing the complaint, we issued
    a letter of inquiry to the licensee.

3.  Entercom submitted a response and included a transcript of the
    material at issue in the complaint. In this regard, Entercom states
    that it used the approximate times of the broadcasts, as noted by
    the complainant, on the dates cited in the complaint in order to
    prepare the transcript using tapes of the broadcasts maintained by
    the station. *See* Attachment.[^1] Entercom argues that the subject
    matter and the language used in the complained of broadcasts is not
    actionably indecent. Specifically, Entercom contends that the
    material broadcast, in context, is not patently offensive as
    measured by contemporary community standards for the broadcast
    medium.

    **III. DISCUSSION**

4.  It is a violation of federal law to broadcast obscene or indecent
    programming. Specifically, 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." Congress has given the Federal Communications
    Commission the responsibility for administratively enforcing 18
    U.S.C. § 1464. In doing so, the Commission may, among other things,
    impose a monetary forfeiture, pursuant to Section 503(b)(1) of the
    Communications Act (the "Act"), 47 U.S.C. § 503(b)(1), for broadcast
    of indecent material in violation of 18 U.S.C. § 1464. Federal
    courts have upheld Congress's authority to regulate obscene speech
    and, to a limited extent, indecent speech. Specifically, the U.S.
    Supreme Court has determined that obscene speech is not entitled to
    First Amendment protection. Accordingly, Congress may prohibit the
    broadcast of obscene speech at any time.[^2] In contrast, federal
    courts have held that indecent speech is protected by the First
    Amendment.[^3] Nonetheless, the federal courts consistently have
    upheld Congress's authority to regulate the broadcast of indecent
    speech, as well as the Commission's interpretation and
    implementation of the statute.[^4] However, the First Amendment is a
    critical constitutional limitation that demands we proceed
    cautiously and with appropriate restraint.[^5] Consistent with a
    subsequent statute and case law,[^6] under the Commission's rules,
    no radio or television licensee shall broadcast obscene material at
    any time, or broadcast indecent material during the period 6 a.m.
    through 10 p.m. *See* 47 C.F.R. § 73.3999.

5.  In enforcing its indecency rule, the Commission has defined indecent
    speech as language that first, in context, depicts or describes
    sexual organs or activities. Second, the broadcast must be "patently
    offensive as measured by contemporary community standards for the
    broadcast medium." *Infinity Broadcasting Corporation of
    Pennsylvania*, 2 FCC Rcd 2705 (1987) (subsequent history omitted)
    (*citing* *Pacifica Foundation*, 56 FCC 2d 94, 98 (1975), *aff'd sub
    nom*. *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978)). This
    definition has been specifically upheld by the federal courts.[^7]
    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. *ACT I, supra*. As noted above,
    current law holds that such times begin at 6 a.m. and conclude at 10
    p.m.[^8]

6.  The Commission's indecency enforcement is based on complaints from
    the public. Once a complaint is before the Commission, we evaluate
    the facts of the particular case and apply the standards developed
    through Commission case law and upheld by the courts. *See Industry
    Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464
    and Enforcement Policies Regarding Broadcast Indecency* ("
    *Indecency Policy Statement*") 16 FCC Rcd 7999 at 8015, ¶ 24. "Given
    the sensitive nature of these cases and the critical role of context
    in an indecency determination, it is important that the Commission
    be afforded as full a record as possible to evaluate allegations of
    indecent programming." *Id*. In evaluating the record to determine
    whether the complained of material is patently offensive, three
    factors are particularly relevant: (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. *See* *Indecency Policy Statement*,
    *supra*, 16 FCC Rcd at 8003 ¶ 10. As discussed below, we find that
    the material broadcast on May 30, 2001 and on June 1, 2001 violated
    the Commission's indecency rule. [^9]

7.  During the May 30, 2001 broadcast, the KNDD(FM) morning show
    personalities discussed whether a penis could be used to lift or
    pull objects. The morning show staff then decided to give away
    concert tickets to listeners who would agree to appear in the studio
    and pull objects using their penises. During the June 1, 2001
    broadcast, the morning show staff prepared to assist interested
    listeners in attempting this task. *See* Attachment.

8.  Entercom acknowledges that the material broadcast on May 30 and June
    1, 2001 contained references to sexual organs. Thus, this material
    warranted scrutiny. Although Entercom argues that, in context, this
    material was not patently offensive, we disagree.

9.  With respect to the *Indecency Policy Statement's* first key factor,
    we find that the sexual references in both the May 30 and June 1,
    2001 broadcasts are explicit and graphic. In this regard, there is
    extensive discussion as to whether a penis is capable of pulling
    different types and sizes of objects. In addition, there is
    discussion as to whether a penis would have to be erect to pull a
    13-inch television, and the relative penis size necessary to pull a
    Jeep. Moreover, the anatomical features of a penis are discussed in
    terms of how to attach the objects to be pulled. For example, on
    June 1, 2001, there is a discussion about the use of a harness to
    assist in pulling the objects, whether an individual's penis is
    sufficiently erect to put the harness on and whether his testicles
    fit through the harness. Moreover, under the second key factor, the
    material broadcast on May 30 and June 1, 2001 dwells on and repeats
    at length descriptions of male genitals.

10. The inquiry under the third key factor of the *Indecency Policy
    Statement* is whether the material appears to pander, or is used to
    titillate or shock. Entercom argues that the broadcasts are not
    patently offensive because they were not intended to pander to,
    titillate or shock the audience, and are not lewd or vulgar.
    Notwithstanding Entercom's claims, there were vulgar and lewd
    references to male genitals in the context of explicit references to
    penis size, erections, and the parts of the male genitals, including
    the head, shaft and testicles. These references, in context, are
    similar to other material that has been found to be patently
    offensive.[^10] Thus, we disagree with Entercom's assertion that the
    context of the broadcast would have been the same if the material
    had described lifting or pulling an object using a body part other
    than the genitals -- such as the nose or a finger. In the complained
    of material, the sexual references are used to titillate or
    shock.[^11]

11. Moreover, we reject Entercom's argument that this material is
    consistent with contemporary community standards. Entercom contends
    that explicit discussions of male genitalia are common today on
    radio and broadcast television, and cites material dealing with
    impotence and erectile dysfunction, penis size, non-clinical
    discussion of penile enlargement as well as the Clinton sex scandal.
    However, as set forth above, the Commission does not independently
    monitor broadcasts for indecent material, and relies on documented
    complaints of indecent broadcasting as the basis for its enforcement
    actions.[^12] Thus, the material that Entercom describes, if
    broadcast between 6 a.m. and 10 p.m., nevertheless may be, in
    context, indecent. However, that material is not at issue here.
    Entercom also argues that precedent from the first few years after
    the Commission adopted the definition of indecency does not
    accurately reflect contemporary community standards and thus
    suggests that we cannot rely on this precedent when evaluating the
    KNDD broadcasts. Although standards and mores certainly change over
    time, we cannot accept Entercom's assertion that the material
    broadcast on May 30 and June 1, 2001 is consistent with contemporary
    community standards for the broadcast medium. In this regard,
    looking to a national community standard that references the average
    broadcast listener, we find that the material broadcast on KNDD(FM),
    in context, is patently offensive.[^13] This material appears to be
    actionably indecent because it was broadcast after 6 a.m. and within
    the period when there was a reasonable risk that children may have
    been in the audience.

12. 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.[^14] 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 on KNDD(FM) on May 30 and June 1, 2001.

13. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^15] 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."[^16] After reviewing all of the circumstances, we
    believe a \$14,000 forfeiture is appropriate in this case for the
    apparent broadcast of indecent material on two separate occasions.

    **IV. ORDERING CLAUSES**

14. 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,[^17] that Entercom Seattle
    License, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of fourteen thousand dollars (\$14,000) for
    willfully and repeatedly violating 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.

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

16. 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 MUST INCLUDE the FCC Registration Number
    (FRN) referenced above and also must note the NAL/Acct. No.
    referenced above.

17. 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 NAL/Acct. No. referenced
    above.

18. 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.

19. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^18]

20. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to John C. Donlevie,
    Executive Vice-President, Entercom Seattle License, LLC, 401 City
    Avenue, Suite 409, Bala Cynwyd, Pennsylvania, 19004 and to
    Entercom's counsel, Brian M. Madden, Esq., Leventhal, Senter &
    Lerman P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C.
    20006-1809.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**[ATTACHMENT]{.underline}**

Radio Station: **KNDD(FM), Seattle Washington**

Dates/Time of Broadcasts: May 30, 2001 and June 1, 2001, between 6 a.m.
and 10 p.m.

Material Broadcast: The Andy Savage Show

**May 30, 2001**

AS: Andy Savage

J: Jody

B: Bob, the Producer

MV: Caller

**AS:** That was the Red Hot Chili Peppers, 107.7, The End. It\'s 7:16,
I\'m Andy Savage, along with Jody, Queen of Normandy and Bob the
Producer, who\'s filling in for Steve the Producer.

**B:** Woop, Woop.

**AS:** 50 going to 70 for the high today. It\'s going to be sunny

**J:** Was that your wacky producer noise right there? Woop, woop, woop,
woop, woop!

**AS:** Bob, I don\'t think you should be saying anything \'cuz you lost
on \"Beat the Producer.

**B:** Alright, I\'m Sorry, I\'ll be quiet.

**AS:** Meanwhile in India when they protest against the federal
government, you know they don\'t blow things up or anything, they pull
Jeeps with their penises. A uh, Naga Sathu naked holy man was
demonstrating again the government harassment of naked holy men and to
make sure that they heard him he tied a rope around his penis and pulled
a Jeep.

**J:** He should have just used a megaphone like everyone else. What the
Indian government has a big problem with naked holy men? Are they\'re
running around crazy like?

**AS:** I guess so, I guess it\'s against the law. But he, I guess,
pulled a Jeep to prove his point. I\'m sure it was in neutral. I hope it
was in neutral.

**J:** I can imagine it was in neutral. I\'m sure it was one of those
like Suzuki Samurais too, not a big Hummer.

**AS:** Holy crap Nadi, he just pulled a Jeep and it was in park - he
did it with his penis!

**J:** You always hear about guys lifting stuff and pulling stuff with
things attached to their penises. I think that is incredible. Could you
pull something with your penis?

**AS:** Me?

**J:** Like if I was to tie, let\'s say um, what if it was something
small like.

**AS:** I\'d pull my penis right off!

**J:** If it was something small like

**AS**: Like an acorn, yeah I can drag that around.

**J:** Like my orange. Let\'s say I tied a rope around my orange and
then tied the other end to your penis, and you could pull that?

**AS:** Of course I could drag that.

**J:** How about a 13 inch TV? Like at what point do you think.

**AS:** If I think, I think if I was fully erect I could pull a 13 inch
TV.

**J:** So you would have to be erect?

**AS:** Yes.

**J:** Bob?

**AS:** Not for an orange though.

**J:** Bob, could you pull a 13 inch TV?

**B:** No. I\'m not going heavier than ten pounds. I\'m not. That's
about my cutoff, about ten pounds- erect, no erect. Ten pounds.

**J:** Well what do you think the problem would be, that you\'d pull
your back out or you\'d actually pull your penis off?

**B:** Perhaps.

**AS**: No, I don\'t think you\'d pull your penis off with a TV that
small.

**J:** Cause if these guys can drag stuff, why can\'t you?

**AS:** We\'re talking about a Jeep. Why, I don\'t know I\'ve never
tried nor do I care to try

**J:** I want to see somebody pull something with their penis right in
front of me live, here in the studio.

**B:** You could do a lot of damage.

**J:** Really.

**B:** You could tear some tissue. You don\'t even want to joke around
with....

**AS:** Yeah. It\'s in there in some sort of socket I\'m sure. What if
it just pops right out. That would suck.

**J:** Well it\'s like saying, you know, what if we\'re arm wrestling
and my arm pops out of the socket.

**AS:** That\'s true.

**J:** Things are attached with muscles and tendons. Your penis is
attached with muscles and tendons.

**AS:** No it\'s a tissue that fills with blood, that\'s all,

**J:** Well it\'s attached.

**AS:** Well yeah, it\'s just skin though. It\'s not like it\'s an
attached bone.

**J:** Well if Naboo whatever can pull a Jeep with his penis....

**AS:** Naga Sathu.

**J:** Do you think that he has some super penis?

**AS:** No.

**J:** And yours is not so super?

**B:** He\'s been practicing for a long ass time. He didn\'t first start
with a Jeep.

**J:** What about those guys that ?

**AS:** Mr. Lifto from the Jim Rose Circus.

**J:** He lifts stuff.

**AS:** He lifts stuff with his penis and he lifts like concrete blocks
doesn\'t he?

**B:** But he started small.

**J:** So you gotta start small and practice and build up.

**AS**: I\'m sure there\'s a training regime just, like in any sport.

**J:** Really?

**AS:** You don\'t start out with a shot-put and throw it, you know,
fifty you know \....

**J:** Yards.

**AS:** Right, whatever. You gotta start small.

**J:** With like an acorn for instance.

**AS:** I don\'t know. How do you learn how to, I guess it\'s like
anything. You practice, you get better. You pull things with your penis.
You go from an orange to a 13 inch TV to maybe a motorcycle.

**J:** Can I, can I put something out here, and if you don\'t like what
I\'m about to say then go ahead and just say Jody shut up. We have so
many concert tickets right now, just flying out of all our pockets - I
say tomorrow morning if someone is willing to come in here and let me
tie something onto their penis and if they can pull it like five
feet.... Maybe something like five pounds, if they can pull it five feet
here in the studio, we\'ll give them concert tickets. Their choice.

**AS:** Well, I\'ll go along with that. But I mean I think it should be
a \'bid\' thing. For example, Joe can call up and say yeah I\'ll pull an
orange for you five feet, big deal. Who wants to see that?

**J:** But if someone else can pull a 13 inch TV?

**AS:** Right. Somebody who\'s gonna do something kind of amazing, yeah
we\'d love to have you.

**J:** So their choice Godsmack & Deftones tickets or

**AS:** Three Doors Down.

**J:** Three Doors Down with Tantric and Lifehouse.

**AS:** Yes.

**J**: Their choice.

**B:** We\'re gonna see an amazing spectacle of penis pulling.

**J:** I wanna see some penis pulling.

**B:** I guarantee, I guarantee there\'s people out there that can pull
a lot of stuff with their penis and we\'re gonna hear from them.

**AS:** Do you think there\'s a lot of people out there that spend a lot
of time practicing? I mean if they did, wouldn\'t we hear about them in
the news or like in some show, like in the Jim Rose Circus?

**J:** You know certain people collect stamps? Other people pull stuff
with their penis. It\'s whatever your hobby is.

**AS:** Well this guy did a freakin\' Jeep. I don\'t think anybody is
gonna do that well.

**J:** That\'s incredible.

**AS:** Yes it is. How about a Volkswagen?

**J:** Some sort of smallish Cabriolet type thing?

**AS**: A little lighter, yeah?

**J:** No, we don\'t need something like that. I\'m sayin\' like, you
know, some sort of studio equipment that weighs like ten pounds.

**AS:** Let\'s say, for example, we get 20 people to call in and say
yes, I can pull stuff with my penis. Why don\'t we get all 20 in to pull
the Volkswagen?

**J:** Wow.

**AS:** That\'ll make the news.

**J:** That\'d be something.

**AS:** Alright. Well, check it out. 421-107. It\'s 7:21. Coming up
we\'re gonna give you a chance to win some Godsmack/Deftones tickets in
a different sort of way and we\'re still waiting for the Stone Temple
Pilots \"Days of the Week.\"

**J:** Yeah, (clapping) whew.

**AS:** It should be here any minute now.

**\[Recorded Voice Over: 107.7, The End, Music News You Can Use \-- with
Steve the Producer. Now.\]**

**J:** If you enjoyed Weezer\'s new \"Green\" album you waited four
years for, it looks like you\'re not going through that again.

**AS:** You have it, we have it.

**J:** We have what?

**AS:** We have the new Stone Temple Pilots.

**J:** Oh nice.

**AS:** Alright, do that.

**J:** Alright, I\'ll do this real quick.

**J:** Uh, Weezer used one day off to go into the studio and start
recording new songs already. They\'ve already laid down demos for twelve
new songs about sixteen minutes of music. I\'d imagine in case you are
wondering, among the new songs one is called \"American Gigolo,\" there
is an instrumental called \"Burnt Jamb\" that is, j-a-m-b like a
doorjamb because they are clever. Mikey Walsh the bassist says that they
do want to put out a new album every year just like the bands in the
sixties use to and that waiting four years was obviously a bad idea.

> Again Endless Summer Concert #6 are down with Tantric and Lifehouse.
> Wednesday July 11, Pickeria, tickets on sale Friday 4:00 p.m. at
> Ticketmaster \$27.50. Also Endless Summer Concert #7, Godsmack and
> Deftones Friday, July 13 at the Gorge. Tickets go on sale 11a.m.
> Ticketmaster, \$35.00. Of course, listen all week to win tickets
> before you can buy them here on the morning show and inside of Endmail
> at 107.7.com for extra chances to win.

**AS:** Yeah.

**J:** That\'s it.

**AS:** Traffic.

**J:** I-5 north bound heavy at south bound 88th street and then messy
from Oliver Place to Seattle Bridge. 1-5 south bound congested from 1-96
southwest to northeast 185th street and shoreline continues heavily at
north gate also sluggish approaching the ship Canal Bridge. 1-5 express
lanes are heavy through the Convention Center. 405 north bound congested
from the Rednest Curve to Colecreek Parkway. 405 South bound slow from
532 Northeast 85^th^ Street and then heavy at Northeast 44^th^ south.
Stop and go through the Red Nest Curve and then messy from 167 to the
1-5 Interchange at South Center. 520 East Bound heavy stop and go
throughout the arboretum and that\'s your End traffic.

**AS**: Hmm.

**J:** You ready over there?

**AS:** Ah, yeah, I\'m, I\'m just thinking to myself, you know I bet if
we had twenty guys pulling on a Volkswagon with their penises Q13 would
cover it.

**J:** You think?

**AS:** Yes, I think they will cover it.

**J:** But we don\'t, do we have enough concert tickets for twenty guys?

**B:** Oh yeah.

**AS:** I\'ll buy them.

J: Yeah?

**AS:** Yes, alright, Brad.

**MV:** Yeah, I gotta question on this whole penis thing.

**AS:** Yeah.

**MV:** Well, dude seriously, how could you possibly attach it? I mean
are we talking duct tape? Are we talking \.....

**J:** No. No.

**AS:** Good question.

**J:** No, no. I\'m thinking that we would tie some sort of string-like
fabric around \...

**AS:** No. You tie string and something that heavy that\'s gonna like
rip the skin.

**MV**: Yeah. Jody I love you but you gotta understand its not built
quite like that.

**J:** No, I\'ve seen penises once or twice before. I can imagine that
maybe bungee cord?

**AS:** What?

**AS:** Use one of hair scrunchies or like a wristband or something and
double-up and then tie some string to that.

**J:** Well how?

**MV:** Yeah, well, I don\'t know.

**AS:** Hair scrunchies!

**MV:** I\'m all for the contest and, more power to you, but that poor
guy. If we\'re talking like kite strings, god help him.

**AS:** No, right. That would like sever the head right off, especially
for the circumcised nadoos.

**J:** Oh, we\'re not doing it around the head, we\'re doing it closer
to the bottom of the shaft, you gotta get your whole, I mean weights and
levers.

**MV**: Yeah, but there\'s not like knobs down there. I mean what are
you gonna \.....

**AS:** There\'s not really anything to hold on to, it would slip all
the way to the mushroom, if you will.

**MV:** Exactly.

**J:** There\'s not knobs. Are you sure?

**AS:** Yes.

**MV:** Last time I checked. No, that\'s what I was curious about. I
think it\'s a great idea, but man, it\'s gonna have to be tape or
something.

**AS:** Well you know Brad this is all for not if you don\'t actually
know how to pull anything with your penis or have never practiced it,
right.

**J:** I\'m gonna have Bob, the producer, pull down his pants real quick
and we\'re gonna figure out some sort way to tie stuff on it.

**AS:** Could you get us a hair crunchie please?

**J:** Scrunchie.

**AS:** Scrunchie.

**J:** We gotta trial and error here - is the way to attach things to
your penis.

**AS:** First we\'ll have Bob try it. Thank you very much and that\'s a
fine point, you don\'t want to use like flimsy bad string.

**MV**: Absolutely not. It\'s bad, bad news.

**J:** Nobody\'s duct taping anything to anybody\'s penis, believe you
me.

**AS:** Alright. We\'ll investigate it, we\'ll look into it and see how
we can actually do it. Alright, coming up next here check this out, this
is ah, I\'m not going to play the whole thing or anything, just a piece
of the new Stone Temple Pilots called \"Days of the Week\". **\[Plays
two lines of music\].** Alright that\'s next. The whole thing on the
End.

**\[Lengthy Commercial Break\]**

> \* \* \* \* \*

**June l, 2001**

AS: Andy Savage

J: Jody

B: the Producer

C: Carl

K: Kevin

MV: Male voice

**AS:** Alright, you ready for some music news? It might take Carl a
little while to get the harness on.

> **\[Recorded Voice Over: 107.7, The End, Music News You Can Use \--
> with Steve the Producer. Now.\]**

**J:** So, if you\'ve been watching VH-1\'s \"Most Shocking Moments Of
Rock. Listen to this. Mark McGrath, he\'s from Sugar Ray, the front man,
he\'s hosting it, he\'s got a shocking past himself. If you\'ve ever
seen *Backstage Sluts, 1,* 11 and 111. He was in that, doing some
shocking stuff. He agreed to do the show as long as the network
downplayed his involvement in that series of porn films. He\'s in it,
Fred Durst is in it, and they\'re doing very nasty things with groupies.
The series director, porn star Matt Zane shot back at Mark McGrath and
he said that it was Mark\'s decision to be in the film and even signed a
release form. To have a fellow artist censor you for your personal
reasons is the lowest of low acts that on can commit. So Matt Zane, pom
star, firing back at Mark McGrath. So basically Mark was just like sure
I\'ll host it if you pretend like you never saw me in *Backstage Sluts.*

> Blink 182 news. Drummer Travis Barker has a big problem. He\'s been
> telling people that a deranged stalker has been after him, broke into
> his house a number of times, left letters in each room that read "I\'m
> watching you, lock your doors." And then the next day, letters again,
> "P.S., lock your doors." Travis, obviously freaked out, says since the
> incident occurred he invested in two 140-pound Rottweillers and now
> carries a gun to protect his family. He says it\'s not really him that
> he\'s worried about, if it comes down it he can kick the guy\'s ass.
> He\'s worried about his girlfriend. Well you know, if it comes down to
> him or this weird guy, he\'s like you know I\'ll just beat him up. But
> if my girlfriend\'s in the house while I\'m on tour, that\'s what I\'m
> worried about. He says now if anyone comes into my house, they\'re
> gonna be sorry.
>
> Rehab. Singers Brooks and Danny Boone say they\'ve always felt like
> oddballs in their native Atlanta because they\'re white rappers. Hmmm,
> I wonder why they would feel weird about that? They say we\'re the
> only ones that I know of that are rapping. They say that people
> usually look at white rappers as a novelty act. But, "To me, rhyming
> is poetry and that is dateless."

**J:** If I can get some of these penis guys out of the way here, I have
some. .

**AS**: Wait a minute. I hate to interrupt, but we have a problem here.
Apparently crazy Carl can\'t get aroused enough to get the harness on.

**J:** Oh really.

**AS:** Yes.

**C:** Actually, the harness that actually goes around the scrotum is a
little tight and I\'m worried about\....

**AS:** Your testicles are too large.

**C**: We can\'t snap it through.

**J:** You\'re supposed to pull them through there crazy Carl. It\'s
like a belt.

**AS:** Kevin, could you go over and help him?

**J:** Oh God.

**K:** That\'s not in my job description.

**AS:** Well Carl do what you gotta do. Would anybody else like to try?
I mean if you can\'t get the harness on we can\'t pull the car.

**J:** I think Joe the modulator should step up and try.

**AS:** Yeah virgin.

**J**: While he\'s doing this, let me just mention this one thing. If
you sign up for Endmail at 1077theend.com for your exclusive invitation
to another penny pincher concert with Rehab. It\'s Tuesday, June 12^th^
at Graceland. It\'s just a buck seven with your printed Endmail invite.
For Endmail listeners only. Of course, you cannot get in unless you are
on the Endmail list. Just another reason to sign up for Endmail at
1077theend.com.

**AS:** And get there early or you still may not get in \'cause it\'s
kind of a first come first serve.

**J:** Not kind of.

**AS:** There\'s a fire code you know.

**J:** It is.

**AS:** Here\'s traffic.

**J:** I-5 Southbound heavy to just before the Orange County line. 405
Northbound just heavy north of northeast 44^th^. 405 Southbound heavy
just South of Southeast 124^th^. And 167 Northbound heavy off 15^th^
Street to the Green River. And heavy approaching the 405 interchange,
and that\'s in traffic.

**AS:** Alright. Kevin from Love Zone, these harnesses, are they
specifically made for larger men or what is the deal here? I mean, how
big do you have to be to get into this harness?

**K:** I believe that they\'re kind of a one size fits all.

**AS**: Yeah? So you can be very small and it doesn\'t matter? I\'m not
trying to make fun of anybody here. But, I mean, maybe Carl has a half
inch whatever and can\'t get it thru the harness.

**MV:** I think Carl wasn\'t smart enough to it button and so he\'s
making up a story about "Oh, I\'m too big to put it on."

**J:** Joel\'s making fun of crazy Carl. I feel things tensing up in the
studio. Joel, he\'s crazy. You never poke fun at a crazy man.

**AS:** Alright. All you guys that are here, could you please grab a
harness from Kevin.

**J:** Yeah.

**AS**: And try and put it on.

**J:** Yeah.

**AS:** And then we\'ll tie a piece of rope to it. And then we\'ll yank
you around like dogs .

**\[Lengthy Commercial Break\]**

*\*\*\*\**

[^1]: As set forth in note 9, *infra*, the complaint is denied with
    respect to material broadcast on May 31, 2001, and thus the
    attachment does not include this material.

[^2]: *See Miller v. California*, 413 U.S. 15 (1973), *rehearing
    denied*, 414 U.S. 881 (1973); *Sable Communications of California,
    Inc. v. FCC*, 492 U.S. 115 (1989).

[^3]: *Sable Communications of California, Inc. v. FCC, supra* note 2,
    492 U.S. at 126.

[^4]: *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). *See also*
    *Action for Children's Television v. FCC*, 852 F.2d 1332, 1339 (D.C.
    Cir. 1988) ("*ACT I*"); *Action for Children's Television v. FCC*,
    932 F.2d 1504, 1508 (D.C. Cir. 1991), *cert denied*, 112 S.Ct. 1282
    (1992) ("*ACT II*"); *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]: *ACT I, supra* note 4, 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
    say and hear."). *See also United States v. Playboy Entertainment
    Group, Inc.*, 529 U.S. 803, 813-15 (2000).

[^6]: Public Telecommunications Act of 1992, Pub. L. No. 356, 102^nd^
    Cong., 2^nd^ Sess. (1992); *ACT III, supra* note 4*.*

[^7]: In *FCC v. Pacifica Foundation,* the Court quoted the Commission's
    definition of indecency with apparent approval. *FCC v. Pacifica
    Foundation*, *supra* note 4, 438 U.S. at 732. In addition, the D.C.
    Circuit Court of Appeals upheld the definition against
    constitutional challenges. *ACT I*, *supra* note 4, 852 F.2d at
    1339; *ACT II, supra* note 4, 932 F.2d at 1508; *ACT III, supra*
    note 4, 58 F.3d at 657.

[^8]: *ACT III,* *supra* note 4.

[^9]: The complained of material broadcast on May 31, 2001 was a
    discussion of the use of sexual fantasy to reduce stress, and
    included references to masturbation and to fantasies about sexual
    encounters with celebrities and others. Although this material, in
    context, describes sexual activity, it is not patently offensive as
    measured by contemporary community standards for the broadcast
    medium and thus is not actionably indecent. Specifically, the sexual
    references are not sufficiently explicit or graphic to be deemed
    actionable, nor does the material dwell upon, or repeat at length
    descriptions of sexual activities. In context, the sexual references
    were not presented to titillate, pander to, or shock the audience.
    *See, e.g., Citadel Broadcasting Company, (KKMG(FM))*, DA 02-23 (EB
    Jan. 8, 2002). The complaint is denied with respect to the material
    broadcast on May 31, 2001.

[^10]: *See, e.g., Independent Group Limited Partnership (WWWE(AM)),* 6
    FCC Rcd, 3711, 3712 (MMB 1990)(humorous discussion of a man with a
    penis on his head, which is a "birth defect"); *Goodrich
    Broadcasting, Inc. (WVIC-FM)*, 6 FCC Rcd 2178, *aff'd* 6 FCC Rcd
    7484 (MMB 1991)(vulgar, repeated and gratuitous references to sexual
    organs and activities in the context of humorous discussions
    concerning an allegedly true incident in which a man's testicle was
    trapped in the drain of a hot tub); *KFI, Inc.(KFI(AM)),* 6 FCC Rcd
    3699, 3700 (MMB 1989)(discussion of the size of the genitals of male
    celebrities and political leaders, including commentary on the size
    of erect genitals relative to those that are not erect.).

[^11]: *FCC v. Pacifica Foundation, supra* note 4, 438 U.S. at 757
    (1978)(Powell, J., concurring in part and concurring in the
    judgment)("\[T\]he language employed is, to most people, vulgar and
    offensive. It was chosen specifically for this quality, and it was
    repeated over and over as a sort of verbal shock treatment.").

[^12]: *See* ¶ 6, *supra*. *See also, Indecency Policy Statement,
    supra,* 16 FCC Rcd at 8015.

[^13]: *See, e.g., WQAM License Limited Partnership (WQAM(AM)),* 15 FCC
    Rcd, 2518, 2520 (2000) (rejecting a similar argument concerning
    contemporary community standards in light of the Clinton sex scandal
    and explaining that the Commission uses its expertise to apply a
    national community standard that references the average broadcast
    viewer or listener). *See also, Indecency Policy Statement, supra,*
    16 FCC Rcd at 8002 note 15.

[^14]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

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

[^16]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^17]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^18]: *See* 47 C.F.R. § 1.1914.