**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

# In the Matter of ) 

)

**Three Eagles of Columbus, Inc.** ) Control No. 99040101

#  ) NAL/Acct. No. X32080013

Licensee of Station KROR(FM), ) ID# 26649

Hastings, Nebraska )

)

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: April 27, 2000 Released: April 28, 2000**

By the Chief, Enforcement Bureau

### I. Introduction

1\. In this Notice of Apparent Liability for Forfeiture, we find Three
Eagles of Columbus, Inc. (TEC), licensee of Station KROR(FM), Hastings,
NE, 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.

### II. Background

2\. The Commission received information indicating that Station
KROR(FM), Hastings, NE, may have violated 18 U.S.C. § 1464 by
broadcasting allegedly indecent material during the \"Bob and Tom Show\"
on February 26, 1999, between 6 a.m. and 9:45 a.m. 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, is
attached. By letter dated October 27, 1999, we requested TEC to comment
on the complaint. TEC filed its response on November 30, 1999.

### III. 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 has defined 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) (citing *Pacifica
Foundation*, 56 FCC 2d 94, 98 (1975), *aff'd sub nom.* *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).

6\. TEC's response to our October 27, 1999, letter of inquiry indicates
that the "Bob and Tom Show" is a syndicated program carried by station
KROR(FM). During the broadcast of the program, the station has a local
announcer on the "board" to allow for editing of material the station
believes to be indecent, obscene or otherwise offensive. TEC contends
the cited material was not indecent but constituted, "in the major,
innuendo or double entendre" which at the worse could be considered to
be in bad taste. Moreover, it contends that the broadcast was an
isolated occurrence during a four-hour program. We are unpersuaded by
TEC's arguments. The cited language dwells at length on sexual
innuendoes and cannot be considered fleeting. Moreover, the fact that
this is only one segment of a four-hour program is not decisionally
significant. We find that the material relies principally on innuendo to
convey a sexual meaning which is unmistakable and therefore, is
actionably indecent. *Great American Television and Radio Company, Inc.
(WFBQ-FM)*, 6 FCC Rcd 3692 (MMB 1990).

7\. It appears that the subject excerpts are indecent in that they
contain language that describes sexual and/or excretory activities or
organs in patently offensive terms. Because the material aired between
6:00 a.m. and 9:45 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 February 26, 1999, Station KROR-FM, violated 18 U.S.C. §
1464 by airing indecent programming.

8\. Section 503(b) of the Act and Section 1.80(a) of the Commission's
Rules 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 Communications
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.[^2]

9\. The Commission's *Forfeiture Policy Statement* sets a base
forfeiture amount of \$7,000 for transmission of indecent/obscene
materials.[^3] 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,[^4] 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."[^5] After reviewing all of the circumstances, we believe a
\$7,000 forfeiture appears to be appropriate in this case.

#### IV. Ordering Clauses

10\. 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,[^6] that Three Eagles of Columbus, 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.

11\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, [^7] that within thirty days of the release of this Notice, TEC
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.

12\. 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 order of the
Federal Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note the NAL/Acct. No.
referenced above.

13\. The response, if any, must be mailed to 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.

14\. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Three Eagles of Columbus,
Inc.'s counsel, Richard F. Swift, Esq., Suite 350, 2175 K Street, N.W.,
Washington, D.C. 20037.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Attachment

Radio Station: KROR-FM, Hastings, NE

Date/Time Broadcast: February 26, 1999, between 6 a.m. and 9:45 a.m.

Material Broadcast: Bob and Tom Show

99040101

MV: Male Voice

M2: Second Male Voice

M3: Third Male Voice

FV: Female Voice

GS: Girls Singing

\* \*

MV: Hi Felicia, gee, I love your dress and your hair looks so shiny and
manageable, are you still shampooing with Head and Shoulders?

FV: Gosh Chick, I stopped using Head and Shoulders a long time ago. I
mean honestly, who grows hair on their shoulders anyway?

MV: Yeah, right. So what are you using now?

FV: Well, it\'s like Head and Shoulders only without all those
additives. It\'s just called Head. Let\'s tell them about it girls.

GS: If you\'re tired of old shampoo and (Unintelligible) and feeling
blue, yeah, yeah, just remember what I said, yeah, yeah, you\'ll feel
better if you get some Head.

MV: Wow. Where can I get Head?

FV: Lots of places Chick, you can stop by my place later and I\'ll be
happy to give you some Head. (Laughter). In 15 minutes I\'ll have you
shampooed, styled and blown dry.

MV: Gee, you don\'t miss a lick do you? Head sounds great but is it
expensive?

FV: Not at all Chick, my brother says there are places downtown where
you can get Head for less than 10 dollars.

MV: Golly, at that price everyone should be getting Head.

M2: That\'s right Chick, when you say Head, you\'ve said a mouthful. Hi,
I\'m Dr. Raymond Fa-lot-ee-oh from Frig Them All Industries here to tell
you why you should get Head. First it lubricates each limp hair follicle
leaving an erect glistening shaft. Then the scalp\'s natural oils are
sucked out of the root, leaving your hair soft, shiny and exhausted.
Nothing does the job like Head.

M3: Great, can I get Head from my hairdresser Bruce?

M2: Probably, but you might want to try your girlfriend first.

GS: So ask and get some Head today, yeah, yeah, little squirt goes a
long, long way, yeah, yeah, you\'ll look better and you\'ll feel
terriff(?) yeah, yeah, when you get Head you\'re a lucky stiff.

MV: Want hair with lots of volume, nothing gets it up like Head.
Available at a price you won\'t find hard to swallow. And it\'s going
down every day.

FV: Honey, we\'re out of shampoo, can you go out and get some Head?

MV: What did you say?

FV: I said, I want you to go out and get Head.

MV: Oh thank you sweet Jesus. I\'m going downtown.

M2: And Head makes a great holiday gift. Last Christmas my wife gave me
some Head. Then I gave her a pearl necklace. I\'ve never seen her so
choked up.

M3: My girlfriend used to give me Head, then we got married. Now I\'m
lucky if I get Jergen\'s lotion and a National Geographic. (Laughter).

GS: Once you start you won\'t want to stop, Head feels so good you might
blow your top, give Head in the shower you\'ll want to come, give Head.
Mm mm mm mm. If you\'re tired of your old shampoo, yeah, yeah,
frustrated and feeling blue, yeah, yeah, just remember what I said,
yeah, yeah, you\'ll feel better if you get some Head, you\'ll feel
better if you get some Head.

MV: Oh yeah, oh, oh. Head Shampoo, come on give it a shot.

M2: My hair looks great. (Laughter). Use a nap.

MV: A little Head shampoo for you.

M2: By request here on the Bob and Tom program.

\* \*

[^1]: 18 U.S.C. § 1464, 47 U.S.C. § 503(b)(1)(D).

[^2]: *See Southern California Broadcasting Co*., FCC Rcd 4387 (1991).

[^3]: *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)*.

[^4]: 12 Fcc Rcd . at 17110.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 C.F.R. § 0.111, 0.311 and 1.80.

[^7]: 47 C.F.R. § 101.53.