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 Federal  Communications  Commission  DA  00-  2186 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 CITICASTERS  CO.  )  Case  No.  EB-  00-  IH-  0064  )  NAL/  Acct.  No.  X32080030 
 Licensee  of  Station  KSJO(  FM),  )  Facility  #4117  San  Jose,  California  )  JJS 
 ) 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  September  25,  2000  Released:  September  26,  2000 
 By  the  Chief,  Enforcement  Bureau: 
 I.  Introduction 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture,  we  find  Citicasters  Co.  (  Citicasters),  licensee  of  Station  KSJO(  FM),  San  Jose,  California,  apparently  liable  for  a  seven  thousand  dollar  ($  7,000) 
 forfeiture  for  an  apparent  violation  of  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules,  47  C.  F.  R.    73.3999,  by  broadcasting  indecent  material. 


 II.  Background 
 2.  The  Commission  received  a  complaint  concerning  a  broadcast  during  the  Lamont  &  Tonelli  Show  on  February  9,  2000  at  approximately  8:  15  a.  m.  According  to  the  complainant,  a  guest  on  the 
 program  provided  in  great  detail  instructions  on  how  to  perform  fellatio.  A  transcript  of  portions  of  the  program,  as  recalled  by  the  complainant,  is  attached. 


 3.  By  letter  dated  June  8,  2000,  we  requested  Citicasters  to  comment  on  the  complaint.  Citicasters  filed  its  response  on  July  7,  2000.  In  its  response,  Citicasters  states  that  it  cannot  confirm  that  the  material 
 aired  as  described  in  the  complaint.  Citicasters  states,  however,  that  on  February  9,  2000,  a  guest  on  their  show  did  discuss,  in  clinical  terms,  the  proper  technique  for  performing  fellatio.  On  July  12,  2000,  we 
 requested  further  information,  and  Citicasters  responded  on  August  10,  2000.  In  the  further  response,  Citicasters  declared  that  on  February  9,  2000,  on  air  personalities  Tod  Fryfogle  (also  known  as  Lamont 
 Hollywood)  and  Paul  Tonelli  had  on  as  a  guest  Dr.  Natasha  Terry  (a/  k/  a  Janina  Valdez).  Citicasters  states  that  Dr.  Terry  is  a  nationally  recognized  sex  therapist  and  certified  clinical  sexologist,  and  that  she  was 
 qualified  to  conduct  a  clinical  discussion  of  human  sexuality.  Citicasters  also  states  that  Dr.  Terry  has  been  a  guest  on  the  Lamont  &  Tonellli  show  more  than  a  dozen  times  over  11  years.  Messrs.  Fryfogle  and 
 Tonelli  do  not  specifically  recall  what  they  discussed  with  Dr.  Terry  prior  to  interviewing  her  on  February  9,  but  they  are  confident  that  we  emphasized  the  importance  of  keeping  all  on-  air  discussions  of  sexual 
 matters  clinical. 
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 III.  Discussion 
 4.  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. 
 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),  affd  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  Childrens  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  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995),  cert.  denied,  116  S.  Ct. 
 701  (1996). 
 6.  We  reject  Citicasters  contention  that  the  discussion  was  not  indecent  because  the  discussion  was  clinical.  While  Dr.  Terry  may  have  been  qualified  to  lead  a  clinical  discussion  of  sexual  techniques, 
 the  disc  jockeys  comments  on  her  material  show  that  the  material  was  offered  in  a  pandering  and  titillating  manner.  Specifically,  the  disc  jockeys  invitation  to  have  Dr.  Terry  use  a  prop  on  a  radio 
 program,  and  their  laughter  and  statements  (such  as  oh  yeah,  baby)  while  she  conducted  that  demonstration,  show  that  the  material  was  intended  to  be  pandering  and  titillating,  as  opposed  to  a  clinical 
 discussion  of  sex.  We  therefore  find  that  this  material  appears  to  be  indecent  because  it  contains  language  that  describes  sexual  and/  or  excretory  activities  or  organs  in  patently  offensive  terms.  Moreover,  while  the 
 complainant  did  not  provide  us  with  an  exact  transcript  of  the  broadcast,  we  find  that  she  has  provided  us  with  sufficient  context  to  make  the  determination  that  the  broadcast  was  indecent.  Where  the  goals  of  this 
 internal  Commission  procedure  can  be  achieved  by  other  means,  we  will  not  be  diverted  from  pursuing  an  otherwise  legitimate  complaint  by  the  lack  of  direct,  off-  air  recordings  or  transcripts.  Nationwide 
 Communications,  Inc.  (KLUC-  FM),  6  FCC  Rcd  3695  (MMB  1990).  Because  the  material  aired  at  around  8:  15  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  9,  2000,  Station  KSJO(  FM)  violated  18  U.  S.  C.    1464  by  airing  indecent  programming. 


 7.  Section  503(  b)  of  the  Act,  47  U.  S.  C.    503(  b),  and  Section  1.80(  a)  of  the  Commissions  rules,  47  C.  F.  R.    1.80(  a),  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  Commissions  rules.  See  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387  (1991). 
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 8.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000  for  transmission  of  indecent/  obscene  materials.  1  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.  See  12  FCC  Rcd  at  17110.  After  reviewing  all  of  the 
 circumstances,  we  believe  a  $7,000  forfeiture  is  appropriate  in  this  case. 
 IV.  Ordering  Clauses 
 9.  ACCORDINGLY,  IT  IS  ORDERED  pursuant  to  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  Sections  0.111,  0.311,  and  1.80  of  the  Commissions  rules,  2  that  Citicasters  Co.  is 
 hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  seven  thousand  dollars  ($  7,000)  for  willfully  violating  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules. 


 10.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  1.80  of  the  Commissions  Rules,  that  within  thirty  days  of  the  release  of  this  Notice,  Citicasters  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. 


 11.  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  should  note  the  NAL/  Acct.  No.  referenced  above. 


 12.  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. 


 13.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  shall  be  sent,  by  Certified  Mail/  Return  Receipt  Requested,  to  Citicasters  counsel,  John  M.  Burgett,  Esq.,  Wiley,  Rein  &  Fielding, 
 1776  K  Street,  N.  W.,  Washington,  DC  20006. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 


 1  The  Commissions  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Commissions  Rules,  12 
 FCC  Rcd  17087,  17113  (1997)  recon.  denied,  15  FCC  Rcd  303  (1999)  (Forfeiture  Policy  Statement). 
 2  47  C.  F.  R.    0.111,  0.311  and  1.  80. 
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 Radio  Station:  KSJO-  FM,  San  Jose,  CA  Date/  Time  Broadcast:  February  9,  2000,  at  approximately  8:  15  a.  m. 
 Material  Broadcast:  Lamont  &  Tonelli  Show  EB-  00-  IH-  0064 
 ksjo1 


 Complainant  states: 
 Specifically,  the  subject  of  todays  broadcast  was  a  guest  (a  woman)  who  was  giving  in  great  detail  the  steps  in  which  to  perform  fellatio.  The  stations  on  air  personalities    Lamont  and  Tonelli    commonly 
 refer  to  this  sexual  act  as  getting  a  hummer.   
 Although  I  do  not  have  a  tape  or  word  for  word  transcription  of  the  program,  the  portion  of  the  show,  which  I  did  hear,  went  something  like  this: 


 (woman)  .  she  should  go  up  and  down  the  shaft  about  five  times,  licking  and  sucking  and  on  the  fifth  swirl  her  tongue  around  the  head  before  going  back  down.. 
 (on  air  personalities)  Show  us  how  its  done  (evidently  the  guest  had  some  sort  of  a  prop). 
 (woman)  Well,  if  this  was  a  real  penis,  it  would  have  a  ****  ridge,  I  would  like  (sic)  around  the  ridge  like  this 


 (on  air  personalities)  [laughter,  comments  such  as  oh  yeah,  baby] 
 (woman)  To  do  this  right,  you  have  to  pay  attention  to  the  *****,  its  very  sensitive.  If  youre  a  guy  and  your  (sic)  looking  down  at  your  penis,  its  on  the  underside  of 
 the  penis,  theres  a  slight  indentation,  a  groove  thats  really  sensitive,  just  lick  along  the  underside  of  that 


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