**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

+-----------------------------------+---+-------------------------------+
| In the Matter of                  | ) | File No. EB-02-IH-0564-AHB    |
|                                   |   |                               |
| **CAPSTAR TX LIMITED              | ) | NAL/Acct. No. 200432080012    |
| PARTNERSHIP**                     |   |                               |
|                                   | ) | FRN No. 0003474947            |
| Licensee of                       |   |                               |
|                                   | ) | Facility ID No. 14376         |
| Station WAVW(FM)                  |   |                               |
|                                   | ) | Facility ID No. 41066         |
| (Formerly WZZR(FM))               |   |                               |
|                                   | ) |                               |
| Stuart, Florida                   |   |                               |
|                                   | ) |                               |
| and                               |   |                               |
|                                   | ) |                               |
| Station WCZR(FM)                  |   |                               |
|                                   | ) |                               |
| Vero Beach, Florida               |   |                               |
|                                   | ) |                               |
|                                   |   |                               |
|                                   | ) |                               |
|                                   |   |                               |
|                                   | ) |                               |
|                                   |   |                               |
|                                   | ) |                               |
+-----------------------------------+---+-------------------------------+

**Notice of Apparent Liability for Forfeiture**

**Adopted: February 20, 2004** **Released**: **March 18, 2004**

**By the Commission:** Commissioners Martin and Adelstein issuing
separate statements; Commissioner Copps dissenting and issuing a
statement.

**I. Introduction**

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to section 503(b) of the Communications Act of 1934, as amended
(the "Act") and section 1.80 of the Commission's rules,[^1] we grant a
complaint,[^2] and find that Capstar TX Limited Partnership ("Capstar"),
licensee of Stations WAVW(FM),[^3] Stuart, Florida, and WCZR(FM) Vero
Beach, Florida, apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully and repeatedly airing indecent material over the
stations on May 31, 2002. Based upon our review of the facts and
circumstances in this case, we conclude that Capstar is apparently
liable for a monetary forfeiture in the amount of Fifty-Five Thousand
Dollars (\$55,000.00).

**II. BACKGROUND**

2\. The Commission received a complaint alleging that Station WZZR(FM)
aired indecent material at 7:15 a.m. on May 31, 2002.[^4] The
complainant included a detailed description of broadcast material that
the complainant believed depicted an actual or apparent sex act between
a man and woman.[^5] Because the complaint contained potentially
indecent material that aired between 6 a.m. and 10 p.m., Enforcement
Bureau ("Bureau") staff issued a letter of inquiry to the licensee.[^6]
In its response to the staff's inquiry, Clear Channel Communications,
Inc. ("Clear Channel"), the indirect parent of Capstar, states that it
has neither a tape nor a transcript and cannot determine whether the
alleged material actually aired.[^7] Nevertheless, Clear Channel does
not deny that the material aired as stated in the complaint, and
maintains instead that, even if it aired the material in question, it
was not actionably indecent.[^8] Specifically, Clear Channel states that
the material consisted mainly of sounds of a woman moaning which was not
patently offensive because the context of the sounds was unclear and
because "any direct references to sex were isolated and brief" and not
"lengthy, repetitive or explicit."[^9] On August 19, 2003, the staff
sent a supplemental letter of inquiry to Clear Channel, to which Clear
Channel responded on September 3, 2003, indicating that the broadcast
material at issue was also simulcast on Station WCZR(FM), Vero Beach,
Florida, on the date and at the time alleged in the complaint.[^10]

**III. DISCUSSION**

3\. The Federal Communications Commission is authorized to license radio
and television broadcast stations and is responsible for enforcing the
Commission's rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in overseeing program
content is very limited. The First Amendment to the United States
Constitution and section 326 of the Act prohibit the Commission from
censoring program material and from interfering with broadcasters'
freedom of expression.[^11] The Commission does, however, have the
authority to enforce statutory and regulatory provisions restricting
indecency and obscenity. Specifically, it is a violation of federal law
to broadcast obscene or indecent programming. Title 18 of the United
States Code, Section 1464 prohibits the utterance of "any obscene,
indecent or profane language by means of radio communication."[^12] In
addition, section 73.3999 of the Commission's rules provides that radio
and television stations shall not broadcast obscene material at any
time, and, consistent with a subsequent statute and court decision,[^13]
shall not broadcast indecent material during the period 6 a.m. through
10 p.m.[^14]

4\. Under section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order issued by the
Commission shall be liable to the United States for a forfeiture
penalty.[^15] In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the notice must be
received, and the person against whom the notice has been issued must
have an opportunity to show, in writing, why no such forfeiture penalty
should be imposed.[^16] The Commission will then issue a forfeiture if
it finds by a preponderance of the evidence that the person has violated
the Act or a Commission rule.[^17] As we set forth in greater detail
below, we conclude under this standard that Capstar is apparently liable
for a forfeiture for its apparent willful and repeated violations of 18
U.S.C. § 1464 and section 73.3999 of the Commission's rules.

**A. Indecency Analysis**

5\. Any consideration of government action against allegedly indecent
programming must take into account the fact that such speech is
protected under the First Amendment.[^18] The federal courts
consistently have upheld Congress's authority to regulate the broadcast
of indecent material, as well the Commission's interpretation and
implementation of the governing statute.[^19] Nevertheless, the First
Amendment is a critical constitutional limitation that demands that, in
indecency determinations, we proceed cautiously and with appropriate
restraint.[^20]

6\. The Commission defines indecent speech as language that, in context,
depicts or describes sexual or excretory activities or organs in terms
patently offensive as measured by contemporary community standards for
the broadcast medium.[^21]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be patently offensive as
> measured by contemporary community standards for the broadcast
> medium.[^22]

7\. As an initial matter, Clear Channel does not dispute that it aired
material describing or depicting sexual and excretory activities and
organs.[^23] That material, therefore, warrants further scrutiny to
determine whether or not it was patently offensive as measured by
contemporary community standards for the broadcast medium.[^24]

8\. In our assessment of whether broadcast material is patently
offensive, "the full context in which the material appeared is
critically important."[^25] Three principal factors are significant to
this contextual analysis: (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.[^26] In examining these three factors, we must weigh and balance
them to determine whether the broadcast material is patently offensive
because "\[e\]ach indecency case presents its own particular mix of
these, and possibly, other factors."[^27] In particular cases, the
weight of one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and consequently
indecent,[^28] or, alternatively, removing the broadcast material from
the realm of indecency.[^29] We turn now to our analysis of the three
principal factors in our decision.

9\. First, the comments and dialogue carried on by the program hosts
during the broadcasts contained graphic and explicit references to
sexual activities, including repeated discussion and depiction of oral
sex. The May 31 broadcast contains a dialogue between the hosts and a
man and woman, purportedly husband and wife, just prior to, during and
after an act of actual or simulated sexual intercourse.[^30]
Specifically, the complainant states that she heard sounds like "someone
was eating" which are referenced later in the conversation as the woman
having had "a mouthful" prior to the beginning of the actual or
simulated sex act, both comprising clear references to oral sex.[^31] In
addition to these references and consistent with that tone, the
broadcast features the sounds of a woman moaning which figure
prominently throughout the segment.[^32] There are other graphic
references to oral sex, for example:

> Then the DJ said to \[the female participant\] 'I think you like
> giving oral as much as you like being on the receiving end, right?'
> She said 'yes.' . . . She asked if she could bring some pictures of
> herself down to the station. The DJ said 'yes and when you come down
> you can give me some oral' to which she replied 'yes' and the DJ said
> 'I'll bet your husband is saying no right now.'[^33]

To the extent that the sound effects or colloquial terms that the
program hosts used to describe sexual activities could be described as
innuendo rather than as direct references, they are nonetheless
sufficient to render the material actionably indecent because the sexual
import of those sounds and terms was "unmistakable."[^34] Given the
explicit references and the graphic manner in which the broadcasts
described the activities of the subjects engaging in the purported sex
acts, there is no non-sexual meaning that a listener could possibly have
attributed to these terms.[^35] Therefore, we find that the broadcast at
issue described sexual activities through the use of direct references,
simulation, and/or innuendo that were sufficiently explicit or graphic
to be deemed patently offensive as measured by contemporary community
standards for the broadcast medium.

10\. Second, the program hosts, in their dialogue with each other and
the callers, continuously focused on the sexual activities of the two
subjects in graphic detail. The sexual discussion and references were
not fleeting or isolated. Rather, discussions about and references to
sexual activity pervaded, and were the subject of the May 31, 2002,
broadcast. Thus, the sexual discussions and references were dwelled upon
and repeated and constitute patently offensive material as measured by
contemporary standards for the broadcast medium.

11\. Finally, and perhaps most significantly, several characteristics of
the manner in which the station presented this material establish that
Capstar broadcast this material to pander to, titillate and shock
listeners. The program hosts' continued and repeated references to the
couple's sexual activities and comments about their specific sexual
practices clearly evince the pandering nature and shock value of the
material with regard to the listening audience. For example, one of the
hosts asked the woman if she and her husband were both naked and whether
"they were ready."[^36] The hosts also asked the woman if she had
"climaxed" and whether she and her husband were "planning on having sex
again."[^37] The hosts conclude the program by stating "we have been
listening to Zoe and her husband having sex."[^38] During the broadcast,
the program hosts geared their questions to the subjects to elicit
specific information from them regarding their sexual practices,
focusing on the topic of oral sex in particular.[^39] By goading the
couple into discussing their sexual activities in a pandering and
offensive manner, the program hosts set out to pander and to shock
listeners. In this regard, the program hosts' broadcast of eating sounds
when referring to oral sex and loud moaning sounds during other sexual
activities demonstrates that, in context, this program was not a
clinical discussion of a married couple's sexual behavior. Further, the
broadcast occurred at or about 7 a.m., when there was a reasonable risk
that children, whom the government has a recognized and compelling
interest to shield from indecent material,[^40] would be in the
audience, on their way to or getting ready for school. For these
reasons, we find that the May 31, 2002, broadcast was patently offensive
as measured by contemporary community standards for the broadcast
medium.

12\. We disagree with Clear Channel's contention that the language used
was not patently offensive or actionably indecent because the context in
which the language appears is not readily apparent.[^41] The material
includes unmistakable references to sexual activity, including sexual
intercourse and oral sex. In a similar situation, we found the broadcast
of graphic descriptions of sexual and excretory activities between
couples to be indecent.[^42] Likewise, the staff determined that the
interview of an adult-film actress who crudely relayed her fondness for
oral sex was indecent.[^43] We believe a similar result is warranted
here.[^44]

13\. In sum, by broadcasting this material on May 31, 2002, within the 6
a.m. to 10 p.m. time period relevant to an indecency determination under
section 73.3999 of the Commission's rules, Capstar apparently violated
18 U.S.C. § 1464 and the Commission's rule against broadcast indecency.

**B. Proposed Forfeiture**

14\. Based upon our review of the record in this case, we conclude that
Capstar is apparently liable for a forfeiture for two willful and
repeated violations of our rules for broadcasting indecent material over
two stations. The Commission's *Forfeiture Policy Statement* sets a base
forfeiture amount of \$7,000.00 for transmission of indecent
materials.[^45] 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."[^46] In this case, taking all of
these factors into consideration, we find that Capstar is apparently
liable for a forfeiture reflecting the proposed imposition of the
statutory maximum of \$27,500 for each broadcast of apparently indecent
material over two stations, WZZR(FM) and WCZR(FM) (2 x \$27,500.00).
Based upon our review of the entire record, we believe that this upward
adjustment to the statutory maximum is warranted. There is a recent
history of indecent broadcasts on stations controlled by Clear Channel,
Capstar's corporate parent, which justifies imposition of the maximum
forfeiture amount.[^47] We reiterate our recent statement that multiple
serious violations of our indecency rule by broadcasters may well lead
to license revocation proceedings.[^48] We also remind broadcasters that
separate utterances within a single broadcast may be considered separate
violations for purposes of determining forfeitures under our indecency
rules.[^49]

**IV. ORDERING CLAUSES**

15\. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules,[^50] that Capstar TX Limited Partnership is hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
Fifty-Five Thousand Dollars (\$55,000.00) for willfully and repeatedly
violating 18 U.S.C. § 1464 and section 73.3999 of the Commission's
rules.[^51]

16\. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this Notice,
Capstar TX Limited Partnership SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.

17\. 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 Numbers
("FRN") referenced above and also should note the NAL/Account Number
referenced above.

18\. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two-year
tracking process regarding the size of entities involved in forfeitures.
If Capstar TX Limited Partnership qualifies as a small entity and if it
wishes to be treated as a small entity for tracking purposes, it should
so certify to us within thirty (30) days of this NAL, either in its
response to the NAL or in a separate filing to be sent to the
Investigations and Hearings Division. The certification should indicate
whether Capstar TX Limited Partnership, including its parent entity and
its subsidiaries, meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business Opportunities
("OCBO") set forth in Attachment A of this Notice of Apparent Liability.
This information will be used for tracking purposes only. Clear
Channel's response or failure to respond to this question will have no
effect on its rights and responsibilities pursuant to Section 503(b) of
the Communications Act. If Clear Channel has questions regarding any of
the information contained in Attachment B, it should contact OCBO at
(202) 418-0990.

19\. The response, if any, must be mailed to William Davenport, 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.

20\. 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.

21\. 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.[^52]

22\. Accordingly, IT IS ORDERED, that the complaint filed against
Station WAVW(FM)'s broadcast of May 31, 2002, IS GRANTED, and the
complaint proceeding IS HEREBY TERMINATED.[^53]

23\. IT IS FURTHER ORDERED, that a copy of this Notice of Apparent
Liability For Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, to Richard W. Wolf, Vice President, Clear Channel
Communications Inc., 2625 S. Memorial Drive, Suite A, Tulsa, Oklahoma
74129; and to counsel for Clear Channel and Capstar, Eve J. Klindera,
Esquire, Wiley Rein and Fielding, LLP, 1776 K Street, N.W., Washington,
D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**ATTACHMENT A**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+

**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

> *Re: Capstar TX Limited Partnership, licensee of Stations
> WAVW(FM)(formerly WZZR(FM)), Stuart, Florida, and WCZR(FM), Vero
> Beach, Florida, Notice of Apparent Liability for Forfeiture*

In this case, two Clear Channel radio stations aired what was
purportedly a couple engaging in sex and then discussed sexual
activities with them. Clear Channel has been the subject of repeated
indecency actions at the FCC, accounting for well over half the
indecency fines since 2000. Yet, notwithstanding the repeated nature of
Clear Channel's transgressions, the majority proposes a mere \$27,500
fine for each incident \-- a "cost of doing business" to a media giant
like Clear Channel.

For repeat offenders as in this case, I believe the Commission should
have designated these cases for license revocation hearings. As I
recognized in a prior case, Clear Channel has taken some steps in recent
days to address indecency on its stations. A hearing would have provided
the Commission with the ability to consider what actions the stations
took in response to these broadcasts and to decide on the appropriate
penalty.

I am discouraged that my colleagues would not join me in taking a firm
stand here against indecency on the airwaves. The time has come for the
Commission to send a strong message that it is serious about enforcing
the indecency laws of our country.

Although I do not support this decision, I am pleased that the
Commission is proceeding in this case without a tape or transcript. The
complainant provided us with a description of what was heard on the
radio. The Commission has decided that this description was sufficient
for us to find that the licensee broadcast indecency. I hope the
Commission will expressly and publicly overturn its general policy that
a complainant must provide a tape, transcript, or significant excerpt of
the programming at issue to support an indecency complaint. I have long
expressed the view that this practice places an inordinate
responsibility on the complaining citizen and that it is the
Commission's responsibility to investigate complaints that the law has
been violated, not the citizen's responsibility to prove the violations.

**STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: Capstar TX Limited Partnership, Licensee of Station WAVW(FM),
Stuart FL, and Station WCZR(FM), Vero Beach, FL, Notice of Apparent
Liability For Forfeiture*

I support this Notice finding that the two licensees at issue apparently
violated our indecency rule. I write separately to emphasize that the
complainant had no tape or transcript, but did provide us with a
description of what she heard on the radio. I am pleased that the
Commission has unanimously decided that this description was sufficient
for us to find that the licensee broadcast indecency. Complaints should
no longer be denied because of a lack of tape, transcript, or
significant excerpt.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

> *Re: Capstar TX Limited Partnership, Licensee of Station
> WAVW(FM)(formerly WZZR(FM)), Stuart, Florida, and Station WCZR(FM),
> Vero Beach, Florida; Notice of Apparent Liability for Forfeiture*

I support this Notice of Apparent Liability for the broadcast of
indecent material at a time when children may be in the audience. By
issuing this NAL, we step up to our responsibility to enforce statutory
and regulatory provisions restricting broadcast indecency. Once again,
we impose statutory maximum fines and remind broadcasters that the
Commission can and will avail itself of a range of enforcement
sanctions. While I am pleased that today we affirmatively find that a
tape or transcript is not necessary, I also remind complainants to
provide a sufficient description on which we can understand the full
context in which the material was broadcast. And I urge broadcasters to
assist the Commission fully with its investigations.

Since I arrived at the Commission, we have greatly stepped up our
enforcement against indecent broadcasts. I expect that these stepped-up
actions will convince broadcasters that they cannot ignore their
responsibility to serve the public interest and to avoid the broadcast
of indecent material over the public airwaves.

[^1]: 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).

[^2]: *See* Letter dated June 1, 2002, to Federal Communications
    Commission ("Complaint Letter").

[^3]: On January 1, 2003, WZZR(FM) changed its call sign to WAVW(FM).

[^4]: *See* Complaint Letter.

[^5]: *Id.*

[^6]: *See* Letter dated July 22, 2002, from Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, to Capstar.

[^7]: *See* Letter dated August 21, 2002, from Kenneth E. Wyker, Senior
    Vice President and General Counsel for Clear Channel, to Marlene H.
    Dortch, Secretary, Federal Communications Commission ("Clear Channel
    Response to Inquiry I").

[^8]: *See id*.

[^9]: *Id.* at 2-4.

[^10]: *See* Letter dated September 3, 2003, from Richard W. Wolf, Vice
    President for Clear Channel, to Marlene H. Dortch, Secretary,
    Federal Communications Commission ("Clear Channel Response to
    Inquiry II").

[^11]: *See* 47 U.S.C. § 326.

[^12]: 18 U.S.C. § 1464.

[^13]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992) (setting the current safe harbor of 10 p.m. to 6
    a.m. for the broadcast of indecent material); *see also* *Action for
    Children's Television v. FCC,* 58 F. 3d 654 (D.C. Cir. 1995) (*en
    banc)*, *cert. denied*, 516 U.S. 1072 (1996) *("ACT III")*
    (affirming restrictions prohibiting the transmission of indecent
    material between the hours of 6 a.m. and 10 p.m.).

[^14]: *See* 47 C.F.R. § 73.3999.

[^15]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); s*ee also* 47
    U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
    1464). Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law. 47 U.S.C. §
    312(f)(1). The legislative history to section 312(f)(1) of the Act
    clarifies that this definition of willful applies to both sections
    312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the section 503(b) context. *See, e.g., Application for Review of
    Southern California Broadcasting Co.*, Memorandum Opinion and Order,
    6 FCC Rcd 4387, 4388 (1991) ("*Southern California Broadcasting
    Co.*"). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc., Grand Isle, Louisiana*, Notice of Apparent
    Liability for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
    Notice of Apparent Liability for, *inter alia*, a cable television
    operator's repeated signal leakage). "Repeated" merely means that
    the act was committed or omitted more than once, or lasts more than
    one day. *Southern California Broadcasting Co.,* 6 FCC Rcd at 4388,
    ¶ 5; *Callais Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^16]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^17]: *See, e.g., SBC Communications, Inc.,* Apparent Liability for
    Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
    (forfeiture paid).

[^18]: U.S. [Const.]{.smallcaps}, amend. I; *See Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^19]: 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." *FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978). *See also ACT I*, 852 F.2d at
    1339; *Action for Children's Television v. FCC,* 932 F.2d 1504, 1508
    (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992) ("*ACT II*");
    *ACT III,* 58 F. 3d at 657*.*

[^20]: *ACT I,* 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 may say and
    hear."). *See id*. at 1340 n.14 (" . . . the potential chilling
    effect of the FCC's generic definition of indecency will be tempered
    by the Commission's restrained enforcement policy.").

[^21]: *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)).

[^22]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶¶ 7-8
    *(emphasis in original)*.

[^23]: *See* Clear Channel Response to Inquiry I at 1.

[^24]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and with respect to
    Commission decisions, does not encompass any particular geographic
    area. *See Indecency Policy Statement* 16 FCC Rcd at 8002, ¶ 8 and
    n. 15.

[^25]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 9 (*emphasis
    in original).*

[^26]: *Id.* at 8002-15, ¶¶ 8-23.

[^27]: *Id.* at 8003, ¶ 10.

[^28]: *Id.* at 8009, ¶ 19 (*citing Tempe Radio, Inc (KUPD-FM)*, 12 FCC
    Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
    explicit nature of references to sex with children outweighed the
    fleeting nature of the references); *EZ New Orleans, Inc.
    (WEZB(FM))*, 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same).

[^29]: *Id.* at 8010, ¶ 20 ("the manner and purpose of a presentation
    may well preclude an indecency determination even though other
    factors, such as explicitness, might weigh in favor of an indecency
    finding").

[^30]: *See* Complaint Letter.

[^31]: *Id.*

[^32]: *Id.*

[^33]: *Id.*

[^34]: *See Indecency Policy Statement,* 16 FCC Rcd at 8003-04, ¶ 12;
    *see also Telemundo of Puerto Rico License Corp. (WKAQ-TV),* 16 FCC
    Rcd 7157 (EB 2001) (forfeiture paid); *Citcasters Co. (KEGL(FM),* 15
    FCC Rcd 19091 (EB 2000) (forfeiture paid).

[^35]: *See Sagittarius Broadcast Corporation,* 7 FCC Rcd 6873, 6874
    (1972) (subsequent history omitted).

[^36]: *See* Complaint Letter*.*

[^37]: *Id.*

[^38]: *Id.*

[^39]: *See* *id*.

[^40]: *See ACT III*, 58 F.3d at 660-63.

[^41]: *See* Clear Channel Response to Inquiry I at 3. Clear Channel
    also alleges that, because the sexual context is not apparent, the
    sound of a woman moaning, by itself, does not meet the Commission's
    indecency standard. *Id.*

[^42]: *See Rusk Corporation* *(KLOL(FM*)), Notice of Apparent Liability
    for Forfeiture*,* 5 FCC Rcd 6332 (MMB 1990) ("*Rusk Corporation*")
    (graphic descriptions that "focused on sexual and excretory
    activities in a lewd, vulgar, pandering and titillating manner"
    broadcast between 6:00 a.m. and 10 p.m. constituted violation of the
    Commission's restrictions on the broadcast of indecent materials).

[^43]: *See Regent Licensee of Flagstaff, Inc*. *(KZGL (FM)),* Notice of
    Apparent Liability for Forfeiture*,* 15 FCC Rcd 17286 (EB 2000).
    *See also Rusk Corporation*, 5 FCC Rcd 6332.

[^44]: *See Rusk Corporation,* 5 FCC Rcd at 6332.

[^45]: *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).

[^46]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^47]: *AMFM Radio Licenses, LLC (WWDC(FM))*, FCC 03-233 (Oct. 2, 2003)
    (forfeiture paid); *Citicasters Co.* (*KEGL*(FM)), 16 FCC Rcd 7546
    (EB 2001) (forfeiture paid); *Citicasters Co. (WXTB(FM)),* 15 RCC
    Rcd 25,453 (2000) (forfeiture paid); *Citicasters Co. (KSJO(FM)),*
    15 FCC Rcd 19,095 (EB 2000) (forfeiture paid); *Citicasters Co.
    (KSJO(FM)),* 15 FCC Rcd 19091 (EB 2000) (forfeiture paid);
    *Citicasters Co. (WXTB(FM)),* 15 FCC Rcd 11,906 (2000) (forfeiture
    paid).

[^48]: *See Infinity Broadcasting NAL(WKRK-FM),* 18 FCC Rcd 6915, 6919,
    ¶ 13 (2003); Forfeiture Order, FCC 03-302, rel. Dec. 8, 2003; *see
    also AMFM FM Radio Licenses LLC (WWDC(FM)),* 2003 WL 22251146 (2003)
    (forfeiture paid) ("*Infinity Broadcasting NAL"*). We note that the
    misconduct at issue here before us occurred prior to our warning
    regarding possible revocation proceedings.

[^49]: *See Infinity Broadcasting NAL,* 18 FCC Rcd at 6919, ¶ 13.

[^50]: 47 C.F.R. § 1.80.

[^51]: The amount is allocated on a basis of \$27,500.00 per station.

[^52]: *See* 47 C.F.R. § 1.1914.

[^53]: Consistent with section 503(b) of the Act and with Commission
    practice, for the purposes of the forfeiture proceeding initiated by
    this NAL, Capstar shall be the only party to this proceeding.