*Pages 1--12 from  Microsoft Word - 23719.doc*
 Federal  Communications  Commission  DA  02-  3448 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 

 In  the  matter  of 
 Edmund  Dinis 
 Licensee  of  WJFD(  FM) 

 New  Bedford,  Massachusetts 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
 File  No.  EB-  01-  IH-  0078  NAL/  Acct.  No.  200332080002 
 FRN  No.  0005-  0201-  02  Facility  ID  No.  18720 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  December  12,  2002  Released:  December  13,  2002 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that  Edmund  Dinis,  licensee  of  Station  WJFD(  FM),  New  Bedford,  Massachusetts,  and  former  licensee  of 
 Station  WSPR(  AM)  Springfield,  Massachusetts,  apparently  violated  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.3999,  by  willfully  broadcasting  indecent  programming  on  Station  WSPR(  AM)  on 
 four  occasions.  1  Based  upon  our  review  of  the  facts  and  circumstances  in  this  case,  we  conclude  that  Mr.  Dinis  is  apparently  liable  for  a  forfeiture  in  the  amount  of  twenty-  two  thousand  four 
 hundred  dollars  ($  22,400). 
 II.  BACKGROUND 
 2.  We  received  a  complaint  on  January  30,  2001  that  alleged  that  Station  WSPR(  AM)  broadcast  indecent  material  on  its  morning  show  during  the  period  December  5,  2000  through 

 January  22,  2001.  The  complainant  supplied  tapes  of  a  morning  show  for  various  days  during  this  period.  We  translated  the  Spanish-  language  material  on  the  tapes  and  found  that  portions  of 
 the  programming  broadcast  by  the  station  warranted  Commission  scrutiny  (see  Attachment  A).  The  programming  at  issue  consists  of  jokes  involving  anal  sex,  oral  sex,  excretory  activities,  and 
 sexual  intercourse  with  a  child  present.  On  August  8,  2001,  we  issued  a  letter  of  inquiry  to  the  licensee  enclosing  a  transcript  of  those  portions  of  the  tapes  as  translated  by  our  staff.  Mr.  Dinis, 
 by  counsel,  submitted  a  response  on  September  5,  2001. 
 3.  In  his  response,  Mr.  Dinis  questioned  whether  the  material  was  broadcast  on  WSPR(  AM).  He  indicated  that  because  the  employees  who  were  responsible  for  programming  at 

 that  time  have  all  left  his  employ  and  he  did  not  have  tapes  of  the  broadcasts,  he  has  no  way  to  reliably  confirm  or  deny  whether  the  programming  was  aired.  He  also  questioned  whether  the 

 1  Edmund  Dinis  assigned  Station  WSPR(  AM),  Springfield,  Massachusetts  (Facility  I.  D.  No. 
 187171)  to  Antonio  F.  and  Helena  R.  Gois,  tenants  by  the  entirety  on  March  6,  2002. 
1
 Federal  Communications  Commission  DA  02-  3448 
 2 
 translation  was  accurate.  On  June  13,  2002,  we  sent  Mr.  Dinis  copies  of  the  cassette  tapes  submitted  by  the  complainant  that  contain  the  segments  translated  and  transcribed.  In  response, 
 on  July  30,  2002,  Mr.  Dinis  confirmed  that  the  translation  of  the  Spanish-  language  material  is  substantially  correct.  Mr.  Dinis  stated  that  he  still  cannot  confirm  or  deny  whether  the  material 
 aired  on  Station  WSPR(  AM).  He  asserts  that  even  if  the  material  described  in  our  letter  of  inquiry  aired  on  WSPR(  AM),  it  is  not  patently  offensive  and,  thus,  it  is  not  actionably  indecent. 
 In  mitigation,  Mr.  Dinis  argues  1)  that  four  of  the  six  passages  are  jokes  told  by  callers  to  the  on  air  show,  2)  that  the  employees  at  the  time  of  the  alleged  broadcasts  have  been  dismissed,  3)  that 
 the  replacement  employees  were  instructed  regarding  the  Commissions  rules  concerning  broadcast  of  indecent  programming,  and  4)  that  he  has  a  good  record  of  compliance  with  the 
 indecency  rule  throughout  20  years  of  operation  of  Station  WJFD(  FM). 
 4.  In  his  September  5,  2001  response,  Mr.  Dinis  asserted  that  he  cannot  tell  from  the  Commissions  letter  if  the  programming  in  question  aired  between  6  a.  m.  and  10  p.  m.,  the  time 

 period  during  which  the  Commissions  prohibitions  regarding  indecency  apply.  Based  on  announcements  of  the  time  given  on  the  tapes  in  question,  the  material  in  the  attached  transcript 
 aired  between  7  a.  m.  and  9  a.  m.  on  the  dates  indicated. 
 III.  DISCUSSION 
 5.  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 
 of  1934,  as  amended  (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  Congresss  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  Congresss  authority  to  regulate  the  broadcast  of  indecent  speech,  as  well  as  the  Commissions  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 

 2  See  Sable  Communications  of  California,  Inc.  v.  FCC,  492  U.  S.  115  (1989);  Miller  v. 
 California,  413  U.  S.  15  (1973),  rehearing  denied,  414  U.  S.  881  (1973). 
 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  Childrens  Television  v. 
 FCC,  852  F.  2d  1332,  1339  (D.  C.  Cir.  1988)  (  ACT  I);  Action  for  Childrens  Television  v.  FCC,  932  F.  2d  1504,  1508  (D.  C.  Cir.  1991),  cert  denied,  112  S.  Ct.  1282  (1992)  (  ACT  II);  Action  for 

 Childrens  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 
2
 Federal  Communications  Commission  DA  02-  3448 
 3 
 Commissions  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. 
 6.  In  enforcing  its  indecency  rule,  the  Commission  has  defined  indecent  speech  as  language  or  material  that  in  context,  depicts  or  describes,  in  terms  patently  offensive  as  measured 
 by  community  standards  for  the  broadcast  medium,  sexual  or  excretory  activities  or  organs.  Infinity  Broadcasting  Corporation  of  Pennsylvania,  2  FCC  Rcd  2705  (1987)  (subsequent  history 
 omitted)  (citing  Pacifica  Foundation,  56  FCC  2d  94,  98  (1975),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978)).  This  definition  has  been  specifically  upheld  by  the  federal 
 courts.  7  The  Commissions  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 
 7.  The  Commissions  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  Commissions  Case  Law  Interpreting  18  U.  S.  C.    1464  and  Enforcement 
 Policies  Regarding  Broadcast  Indecency,  16  FCC  Rcd  7999,  8015  (2001)  (  24)  (  Indecency  Policy  Statement).  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  material;  (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,  16 
 FCC  Rcd  at  8003    10. 
 8.  The  complained  of  material,  in  context,  refers  to  sexual  and  excretory  organs  and  activities  and  thus  warrants  scrutiny.  We  find  that  the  material,  in  context,  is  patently  offensive 

 when  considered  under  the  three  factors  set  out  in  the  Indecency  Policy  Statement. 
 9.  The  first  key  factor  concerns  whether  the  material  is  explicit  or  graphic.  We  find  that  the  programming  at  issue  contains  explicit  depictions  of  anal  sex,  oral  sex,  excretory  activities, 

 and  sexual  intercourse  with  a  child  present.  The  jokes  sexual  and  excretory  import  is  lewd,  inescapable  and  understandable.  Mr.  Dinis  also  asserts  that  the  jokes  were  fleeting.  We  disagree. 

 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  Commissions  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. 
3
 Federal  Communications  Commission  DA  02-  3448 
 4 
 The  jokes  were  not  isolated  spontaneous  remarks.  The  jokes  at  issue  are  of  substantial  duration,  and  were  apparently  a  regular  feature  on  the  morning  show  on  Station  WSPR(  AM). 
 10.  We  also  find  that  the  material  was  aired  for  its  shock  value.  Accordingly,  we  find  that  each  of  the  portions  of  the  programming  contained  in  the  attached  translation  are  so  patently 
 offensive  as  to  be  indecent.  The  Commission  has  previously  found  the  airing  of  similar  programming  indecent.  See  Citicasters  Co.  (WXTB(  FM)),  13  FCC  Rcd  22004  (1998),  affd,  15 
 FCC  Rcd  11906  (2000);  Sound  Broadcasting  Corporation  (KCNA(  FM)),  6  FCC  Rcd.  2174  (1991),  affd,  6  FCC  Rcd  5961  (MMB  1991). 

 11.  Mr.  Dinis  asserts  in  his  July  30,  2002  response  that  the  language  used  is  not  as  coarse  and  explicit  as  the  language  used  in  other  broadcasts  that  were  found  not  to  be  actionably 
 indecent.  9  Mr.  Dinis  cites  cases  that  he  believes  contain  more  offensive  language.  The  Commissions  indecency  prohibitions  do  not  turn  on  the  use  of  any  particular  language.  See 
 Indecency  Policy  Statement,  16  FCC  Rcd  at  8002    9  (explicit  language  in  the  context  of  a  bona  fide  newscast  may  not  be  indecent,  while  sexual  innuendo  that  persists  and  is  sufficiently  clear  to 
 make  the  sexual  meaning  inescapable  might  be);  compare  Peter  Branton,  6  FCC  Rcd  610  (1991)  (subsequent  history  omitted).  Having  considered  the  programming  at  issue  in  the  context  in 
 which  it  was  broadcast,  we  find  that  the  programming  at  issue  is  patently  offensive  and  therefore  that  it  is  actionably  indecent. 

 12.  The  licensee  asserts  that  the  fact  that  some  of  the  material  originated  with  callers  should  be  a  consideration  in  determining  whether  a  sanction  is  warranted.  The  jokes  reflected  in 
 the  attached  transcripts  were  neither  isolated  remarks  nor  were  the  jokes  fleeting  remarks.  Instead,  the  jokes  were  broadcast  as  a  regular  feature  of  the  morning  show  on  WSPR(  AM).  We 
 find  that  the  station  was  promoting  the  airing  of  jokes  of  this  type.  Indeed,  some  of  the  jokes  originated  from  the  radio  station  staff.  Thus,  we  find  that  Mr.  Dinis  should  be  held  fully 
 responsible  for  the  programming  aired.  We  do  not  find  the  fact  that  some  of  the  indecent  programming  originated  with  callers  to  be  mitigating.  See  Rubber  City  Radio  Group 
 (WONE(  FM)),  17  FCC  Rcd  14745  (EB  2002)  (  7). 
 13.  Mr.  Dinis  also  asserts  the  fact  that  the  employees  of  Station  WSPR(  AM)  at  the  time  of  the  alleged  broadcasts  have  been  dismissed,  and  that  their  replacements  were  instructed 

 regarding  the  Commissions  rules  relating  to  indecent  broadcasts.  As  a  Commission  licensee,  Mr.  Dinis  is  responsible  for  assuring  that  the  programming  broadcast  on  his  stations  does  not  violate 
 the  Commissions  rules.  In  this  case,  the  indecent  programming  was  more  than  an  isolated  incident.  It  is  well  established  that  licensees  are  ultimately  responsible  for  the  actions  of  their 
 employees.  See  Empire  Broadcasting  Corp.,  25  FCC  2d  68  (1970).  Furthermore,  a  forfeiture  will  not  be  excused  by  reason  of  subsequent  remedial  action  and  we  do  not  consider  the  action  taken 
 in  this  case  to  be  mitigating.  See  Brittan  Communications  International  Corp.,  15  FCC  Rcd  4852,  4855  (2000). 

 14.  Finally,  Mr.  Dinis  asserts  that  he  has  a  good  record  of  compliance  over  more  than  20  years  of  being  the  licensee  of  Station  WJFD(  FM).  While  this  does  not  excuse  a  violation,  this 
 factor  is  mitigating  when  we  determine  an  appropriate  forfeiture  amount. 
 15.  Thus,  we  find  that  on  four  different  dates  Edmund  Dinis  apparently  violated  the 
 9  Letter  from  Russell  C.  Powell,  Esquire,  Attorney  for  Edmund  Dinis,  to  Charles  W.  Kelley, 
 Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau  dated  July  30,  2002  at  2. 
4
 Federal  Communications  Commission  DA  02-  3448 
 5 
 prohibitions  in  the  Act  and  the  Commissions  rules  against  broadcast  indecency.  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, 
 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.  10  Based  on  the  material  before  us,  it  appears  that 
 Mr.  Dinis  willfully  violated  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules,  by  airing  indecent  programming  on  WSPR(  AM)  on  four  occasions. 

 16.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000  for  transmission  of  indecent/  obscene  materials.  11  The  base  amount  would  thus  be 
 $28,000  for  the  transmission  of  indecent  programming  on  four  occasions.  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.  12  After  reviewing  all  of  the  circumstances  including  the  licensees  record  of 
 compliance  with  the  Commissions  rules,  we  believe  a  $22,400  forfeiture  is  appropriate  in  this  case  for  the  apparent  broadcast  of  indecent  material  on  December  7,  2000,  December  8,  2000, 
 January  8,  2001,  and  January  17,  2001. 
 IV.  ORDERING  CLAUSES 
 17.  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,  13  that  Edmund  Dinis.  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  twenty-  two  thousand  four  hundred  dollars  ($  22,400)  for 
 willfully  violating  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 
 18.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  days  of  the  release  of  this  Notice,  Edmund  Dinis  SHALL  PAY  the  full  amount 

 of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 

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

 10  See  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387  (1991). 
 11  The  Commissions  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). 

 12  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17110. 
 13  47  C.  F.  R.    0.111,  0.  311  and  1.80. 
5
 Federal  Communications  Commission  DA  02-  3448 
 6 
 20.  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. 

 21.  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  respondents  current  financial  status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 

 22.  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.  14 
 23.  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  you  qualify  as  a  small  entity  and  if  you  wish  to  be  treated  as  a  small  entity  for  tracking  purposes,  please  so  certify  to  us  within  thirty  (30)  days  of  this  NAL,  either 
 in  your  response  to  the  NAL  or  in  a  separate  filing  to  be  sent  to  the  Investigations  and  Hearings  Division,  Enforcement  Bureau.  Your  certification  should  indicate  whether  you,  including  your 
 parent  entity  and  its  subsidiaries,  meet  one  of  the  definitions  set  forth  in  the  list  provided  by  the  FCCs  Office  of  Communications  Business  Opportunities  (OCBO)  set  forth  in  Attachment  B  of  this 
 Notice  of  Apparent  Liability.  This  information  will  be  used  for  tracking  purposes  only.  Your  response  or  failure  to  respond  to  this  question  will  have  no  effect  on  your  rights  and  responsibilities 
 pursuant  to  Section  503(  b)  of  the  Communications  Act.  If  you  have  questions  regarding  any  of  the  information  contained  in  Attachment  B,  please  contact  OCBO  at  (202)  418-  0990. 

 24.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  shall  be  sent,  by  Certified  Mail/  Return  Receipt  Requested,  to  Russell  C.  Powell,  Esquire,  Taylor  &  Powell,  LLC,  908  King 
 Street,  Suite  300,  Alexandria,  Virginia  22314. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 David  H.  Solomon  Chief,  Enforcement  Bureau 

 14  See  47  C.  F.  R.    1.1914. 
6
 Federal  Communications  Commission  DA  02-  3448 
 7 
 ATTACHMENT  A 
 Translation  of  Programming  Aired  on  WSPR(  AM)  December  7,  2000 
 Caller:  A  man  was  peeing  in  a  plant,  a  cop  passes  by  and  asks  why  do  you  have  that  whistle  out.  The  man  says  Im  sorry  officer  this  is  not  a  whistle  its  a  telescope.  The  policeman  says,  all  right 
 Ill  see  you  in  court.  While  in  court  the  judge  tells  the  man,  I  see  that  you  are  being  charged  with  peeing  in  public  and  having  your  whistle  out.  The  man  says  please  youre  wrong  it  was  a 
 telescope.  The  judge  says,  well  it  says  here  that  it  was  a  whistle.  Please  explain  what  you  mean  by  a  telescope.  The  man  responds,  well  if  you  put  in  your  mouth  it  does  not  whistle,  but  if  you 
 stick  it  in  your  little  ass  youll  see  stars.  C:  Shouldnt  you  use  anus  or  backside,  that  would  be  the  preferable  term. 

 Caller:  I  have  a  joke.  There  was  a  wife  and  husband  leaving  a  bar  and  they  were  drunk.  The  wife  says  wait  for  me  a  second  I  need  to  pee  out  there.  Then  along  came  a  vampire  and  the 
 husband  said  what  do  you  want.  The  vampire  responds  I  come  to  suck  you.  The  husband  responds  suck  me  fast  so  my  wife  doesnt  find  out  shes  waiting  for  me.  (recorded  laughter) 

 December  8,  2000 
 The  following  excerpt  is  part  of  a  local  gossip  segment: 
 Gossip  Person:  Wait  I  have  something  for  you.  (Singing  to  the  tune  of  a  Son-  By-  Four  song):  Im  sorry  but  I  have  the  runs  at  this  moment.  Im  pushing  and  clenching  my  teeth,  when  the  turd 
 comes  out.  Im  sweating,  sweating  very  slowly,  agonizing  because  the  turd  wont  come  out.  Darling,  pass  me  the  Vaseline,  it  wont  come  out  routinely,  Im  constipated.  And  I  feel  it  in  my 
 heart!  Thats  an  original  song. 
 January  8,  2001 
 Caller:  I  have  a  joke.  A  drunk  man  went  into  town  on  a  little  horse.  He  had  a  drink  and  needed  to  pee,  so  he  went  outside  and  pulled  out  Juanito.  A  soldier  passed  by  and  said  what  are  you 
 doing,  there  are  many  young  ladies  that  pass  by  around  here,  put  your  whistle  back  inside.  The  drunk  man  said  this  is  not  what  you  think.  He  said  you  better  stop  or  I  will  arrest  you,  the  drunk 
 man  said  but  this  is  not  what  you  think,  its  not  a  whistle,  so  the  soldier  arrested  him.  They  appear  in  front  of  the  judge  and  the  judge  says  you  have  been  arrested  for  exposing  your  whistle 
 in  public.  The  man  responded  that  it  was  not  a  whistle,  it  was  a  telescope.  If  you  put  it  in  your  mouth  you  see  nothing,  if  you  put  it  up  your  ass  youll  see  stars. 

 January  17,  2001 
 DJ  Cassanova:  Its  time  for  the  dumb  joke  segment.  Well  start  with  an  in  house  one.  One  time  Pepito  had  just  gotten  up  and  heard  moaning  and  groaning  in  his  parents  bedroom  (DJ  begins 
 to  make  sound  effects  of  moans  and  groans).  So  he  walked  in  and  said  Dad,  Dad  I  want  to  ride  the  horse.  The  Dad  agreed  so  that  Pepito  didnt  ask  questions.  He  told  him  not  to  make  any 
 noise.  Pepito  gets  on  the  Dad,  and  the  Dad  keeps  going  up  and  down.  Pepito  then  says  this  is  going  too  slow.  So  the  Dad  starts  going  faster  and  faster.  The  Mother  could  not  keep  it  in 
 anymore  and  she  started  moaning.  Then  when  the  Dad  was  going  faster,  and  the  Mother  was 
7
 Federal  Communications  Commission  DA  02-  3448 
 8 
 screaming  louder  (DJ  is  making  moaning  and  groaning  sounds)  Pepito  says,  Daddy  dont  stop  because  this  is  the  part  where  the  mail  man  always  drops  me. 
 Caller:  I  have  a  Fidel  joke.  There  was  a  boat  full  of  people  on  their  way  to  visit  Cuba.  When  they  got  there,  Fidel  is  standing  with  many  soldiers.  He  tells  everyone,  anyone  who  is  here  to  see 
 me  must  have  my  face  tattooed  on  their  chest.  A  woman  thinks,  what  am  I  going  to  do,  I  dont  have  his  face  on  my  chest.  When  she  gets  in  front  of  him,  she  says  I  dont  have  your  face 
 tattooed  on  my  chest,  but  she  opens  up  her  pants,  and  tells  him  if  you  put  your  hand  down  there  you  will  feel  the  beard.  Fidel  puts  his  hand  in  and  starts  feeling  around,  all  of  a  sudden  the 
 woman  slaps  him.  He  asks,  why  did  you  do  that?  The  woman  responds,  I  told  you,  you  could  feel  around  for  the  beard  but  I  didnt  say  you  could  put  your  finger  in  my  mouth. 

 MDJ:  I  thought  he  was  going  to  use  his  cigar. 
8
 Federal  Communications  Commission  DA  02-  3448 
 9 
 ATTACHMENT  B  October  2002 
 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  Distribution  Open  Video  Systems  $12.5  Million  in  Annual  Receipts  or  Less 

 Common  Carrier  Services  and  Related  Entities  Wireline  Carriers  and  Service  providers 
 Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange 
 Carriers,  Operator  Service  Providers,  Payphone  Providers,  and  Resellers 
 1,500  Employees  or  Fewer 

 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. 
9
 Federal  Communications  Commission  DA  02-  3448 
 10 
 International  Services  International  Broadcast  Stations 
 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 

 $12.5  Million  in  Annual  Receipts  or  Less 

 Mass  Media  Services  Television  Services 
 Low  Power  Television  Services  and  Television  Translator  Stations 
 TV  Auxiliary,  Special  Broadcast  and  Other  Program  Distribution  Services 
 $12  Million  in  Annual  Receipts  or  Less 

 Radio  Services  Radio  Auxiliary,  Special  Broadcast  and 
 Other  Program  Distribution  Services 
 $6  Million  in  Annual  Receipts  or  Less 

 Multipoint  Distribution  Service  Auction  Special  Size  Standard    Small  Business  is  less  than  $40M  in  annual  gross  revenues 
 for  three  preceding  years 
 Wireless  and  Commercial  Mobile  Services  Cellular  Licensees 

 220  MHz  Radio  Service    Phase  I  Licensees  1,500  Employees  or  Fewer 
 220  MHz  Radio  Service    Phase  II  Licensees 
 700  MHZ  Guard  Band  Licensees 

 Private  and  Common  Carrier  Paging 

 Auction  special  size  standard  -  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) 

 Broadband  Personal  Communications  Services  (Blocks  A,  B,  D,  and  E)  1,500  Employees  or  Fewer 

 Broadband  Personal  Communications  Services  (Block  C)  Auction  special  size  standard  -  Small  Business  is  $40M  or  less  in  annual  gross  revenues  for 
10
 Federal  Communications  Commission  DA  02-  3448 
 11 
 Broadband  Personal  Communications  Services  (Block  F) 
 Narrowband  Personal  Communications  Services 

 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) 

 Rural  Radiotelephone  Service  Air-  Ground  Radiotelephone  Service  1,500  Employees  or  Fewer 
 800  MHz  Specialized  Mobile  Radio  900  MHz  Specialized  Mobile  Radio  Auction  special  size  standard  -  Small  Business  is  $15M  or  less  average  annual  gross 
 revenues  for  three  preceding  calendar  years 
 Private  Land  Mobile  Radio  1,500  Employees  or  Fewer  Amateur  Radio  Service  N/  A 

 Aviation  and  Marine  Radio  Service  Fixed  Microwave  Services  1,500  Employees  or  Fewer 

 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  and  Messaging  1,500  Employees  or  Fewer 

 Personal  Radio  Services  N/  A  Offshore  Radiotelephone  Service  1,500  Employees  or  Fewer 

 Wireless  Communications  Services 
 39  GHz  Service 

 Small  Business  is  $40M  or  less  average  annual  gross  revenues  for  three  preceding  years 
 Very  Small  Business  is  average  gross  revenues  of  $15M  or  less  for  the  preceding  three  years 

 Multipoint  Distribution  Service 
 Auction  special  size  standard  (1996)    Small  Business  is  $40M  or  less  average  annual  gross 
 revenues  for  three  preceding  calendar  years 
 Prior  to  Auction    Small  Business  has  annual  revenue  of  $12.  5M  or  less 

 Multichannel  Multipoint  Distribution  Service 

 Instructional  Television  Fixed  Service 
 $12.5  Million  in  Annual  Receipts  or  Less 

 Local  Multipoint  Distribution  Service 
 Auction  special  size  standard  (1998)    Small  Business  is  $40M  or  less  average  annual  gross 
 revenues  for  three  preceding  years  Very  Small  Business  is  average  gross  revenues  of  $15M  or 
 less  for  the  preceding  three  years 

 218-  219  MHZ  Service 
 First  Auction  special  size  standard  (1994)    Small  Business  is  an  entity  that,  together  with  its  affiliates, 
 has  no  more  than  a  $6M  net  worth  and,  after  federal  income  taxes  (excluding  carryover  losses)  has  no  more  than  $2M  in 
 annual  profits  each  year  for  the  previous  two  years 
 New  Standard    Small  Business  is  average  gross  revenues  of  $15M  or  less 

 for  the  preceding  three  years  (includes  affiliates  and  persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 
 Very  Small  Business  is  average  gross  revenues  of  $3M  or  less  for  the  preceding  three  years  (includes  affiliates  and 
 persons  or  entities  that  hold  interest  in  such  entity  and  their 
11
 Federal  Communications  Commission  DA  02-  3448 
 12 
 affiliates) 
 Satellite  Master  Antenna  Television  Systems  $12.5  Million  in  Annual  Receipts  or  Less 

 24  GHz    Incumbent  Licensees  1,500  Employees  or  Fewer  24  GHz    Future  Licensees  Small  Business  is  average  gross  revenues  of  $15M  or  less 
 for  the  preceding  three  years  (includes  affiliates  and  persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 
 Very  Small  Business  is  average  gross  revenues  of  $3M  or  less  for  the  preceding  three  years  (includes  affiliates  and 
 persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 

 Miscellaneous  On-  Line  Information  Services  $18  Million  in  Annual  Receipts  or  Less 

 Radio  and  Television  Broadcasting  and  Wireless  Communications  Equipment 
 Manufacturers  Audio  and  Video  Equipment 
 Manufacturers 

 750  Employees  or  Fewer 

 Telephone  Apparatus  Manufacturers  (Except  Cellular)  1,000  Employees  or  Fewer 
 Medical  Implant  Device  Manufacturers  500  Employees  or  Fewer  Hospitals  $29  Million  in  Annual  Receipts  or  Less 
 Nursing  Homes  $11.5  Million  in  Annual  Receipts  or  Less  Hotels  and  Motels  $6  Million  in  Annual  Receipts  or  Less 
 Tower  Owners  (See  Lessees  Type  of  Business) 
12