Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                  | )                                 |
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| Citicasters Co.                   | )                                 |
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| Licensee of Station WXTB(FM)      | ) Control No. 98050026            |
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| Clearwater, FL                    | ) NAL/Acct No. 918ed0001          |
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| Facility ID \# 11274              | )                                 |
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## FORFEITURE ORDER

**Adopted: June 23, 2000 Released: June 27, 2000**

By the Commission:

1.  In this Forfeiture Order, we issue a monetary forfeiture in the
    amount of twenty-three thousand dollars (\$23,000) against
    Citicasters Co. ("Citicasters"), licensee of Station WXTB(FM),
    Clearwater, FL, for willful and repeated violations of 18 U.S.C. §
    1464, which prohibits the broadcast of indecent material.

2.  On October 16, 1998, the Commission issued a Notice of Apparent
    Liability for Forfeiture to Citicasters in the amount of
    twenty-three thousand dollars (\$23,000), for the broadcast of
    indecent material during the "Bubba, the Love Sponge" program on
    January 7, 18, and 22, 1998, and May 8, 1997, between 6 a.m. and 10
    a.m. *Citicasters Co. (WXTB(FM))*, 13 FCC Rcd 22004 (1998) ("NAL").
    By letter dated December 2, 1998, Citicasters, by its counsel,
    responded to the NAL. Citicasters admitted the broadcast of the
    material cited in the NAL at or about the times noted and in
    substantially the form presented in the transcripts attached to the
    NAL. Citicasters, however, asked for leave to supplement its letter
    response within 30 days after the Commission issues its "industry
    guidance relating to its case law interpreting 18 U.S.C. § 1464 and
    the FCC's enforcement policy with respect to broadcast indecency" as
    it has committed to do.[^1] Specifically, Citicasters claims that
    issuance of indecency guidelines is "necessary" in order for it to
    make a "reasoned determination of whether any aspects of the
    materials cited" in the NAL are in violation of 18 U.S.C. § 1464.
    Citicasters also asserts that the guidelines are "necessary to help
    it evaluate" why a forfeiture should not be imposed or should be
    reduced.

3.  The Commission's "definition of indecency has remained unchanged for
    years, and in rulemaking proceedings as well as in the context of
    specific rulings, we have amply illustrated what broadcasters may
    and may not do." *WQAM License Limited Partnership (WQAM(AM)*, 15
    FCC Rcd 2518, 2519 (2000), *petition for reconsideration pending*.
    The Commission committed to publish guidelines to assist broadcast
    licensees in their compliance with indecency regulations by
    consolidating information regarding our past rulings in this area.
    *See* 15 FCC Rcd at 2519 and footnote 1, *supra*. However, those
    guidelines will not change the definition of indecency or the
    Commission's enforcement procedures, both of which have been
    affirmed by the courts.[^2] Moreover, as we have previously stated,
    "\[w\]hile we still intend to issue such guidance, we continue to
    believe that our existing rulemaking orders and case law provide
    sufficient guidance." *Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines (Reconsideration Order)*, 15 FCC Rcd 303, 306 (1999).
    Thus, we find no merit to Citicasters' argument that it is unable to
    substantively respond to the NAL until after issuance of the
    guidelines and we see no reason to await issuance of the guidelines
    before imposing the forfeiture order in this case. In the absence of
    any substantive response to our NAL, we impose a forfeiture for the
    full amount originally proposed.

4.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (the "Act"),[^3] and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission\'s rules,[^4]
    Citicasters Co. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
    twenty-three thousand dollars (\$23,000) for willfully and
    repeatedly violating 18 U.S.C. § 1464.

5.  Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's rules[^5] within 30 days of the
    release of this Forfeiture Order. If the forfeiture is not paid
    within the period specified, the case may be referred to the
    Department of Justice for collection pursuant to Section 504(a) of
    the Act.[^6] Payment 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 Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note the NAL/Acct. No. referenced above. Requests for
    full payment under an installment plan should be sent to: Chief,
    Credit and Debt Management Center, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^7]

6.  IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
    sent by Certified Mail Return Receipt Requested to Citicasters Co.'s
    counsel, Marissa G. Repp, Hogan & Hartson, 555 Thirteenth Street,
    N.W., Washington, D.C. 20004-1109.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Citicasters' letter response at 2. See paragraph 2(b) of the
    February 22, 1994, Agreement for Settlement and Dismissal with
    Prejudice between the United States of America, by and through the
    Department of Justice and Federal Communications Commission, and
    Evergreen Media Corporation of Chicago, AM, Licensee of Radio
    Station WLUP(AM). *United States v. Evergreen Media Corp.*, Civ. No.
    92 C 5600 (N.D. Ill., E. Div. 1994).

[^2]: *Action for Children's Television v. FCC,* 852 F. 2d 1332, 1339
    (D.C. Cir. 1988) ("*ACT I*") (subsequent history omitted); *Action
    for Children's Television v. FCC*, 59 F.3d 1249 (D.C. Cir. 1995),
    *cert. denied*, 116 S.Ct. 773 (1996) ("*Act IV*") (rejected a facial
    challenge to the Commission's procedures for imposing forfeitures
    for the broadcast of indecent material). *See also Commission's
    Forfeiture Policy Statement and Amendment of Section 1.80 of the
    Rules to Incorporate the Forfeiture Guidelines (Reconsideration
    Order)*, 15 FCC Rcd 303, 305-06 (1999) (courts have upheld the
    Commission's procedures for imposing forfeitures and its indecency
    standard).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 504(a).

[^7]: *See* 47 C.F.R. § 1.1914.