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 Federal  Communications  Commission  FCC  04-  88 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 CLEAR  CHANNEL  BROADCASTING  LICENSES,  INC. 


 Licensee  of  Stations  WBGG-  FM,  Fort  Lauderdale,  Florida 
 WTKS-  FM,  Cocoa  Beach,  Florida  WTFX-  FM,  Louisville,  Kentucky 


 CITICASTERS  LICENSES,  L.  P. 
 Licensee  of  Stations  KIOZ(  FM),  San  Diego,  California 
 WNVE(  FM),  Honeoye  Falls,  New  York 
 CAPSTAR  TX  LIMITED  PARTNERSHIP 
 Licensee  of  Station  WXDX-  FM,  Pittsburgh,  Pennsylvania 


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 File  No.  EB-  03-  IH-  0159  NAL/  Acct.  No.  200423080023 
 FRN  No.  0001587971 
 Facility  Id.  No.  11965  Facility  Id.  No.  53457 
 Facility  Id.  No.  53593 
 FRN  No.  0004953659 


 Facility  Id.  No.  13504  Facility  Id.  No.  24958 
 FRN  No.  0003474905 
 Facility  Id.  No.  60153 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  April  7,  2004  Released:  April  8,  2004 
 By  the  Commission:  Commissioners  Copps  and  Adelstein  issuing  separate  statements. 
 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 


 Commissions  rules,  1  we  find  that  the  captioned  licensees,  all  of  which  are  subsidiaries  of  Clear  Channel  Communications,  Inc.  (  Clear  Channel),  apparently  violated  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.3999, 
 by  willfully  and  repeatedly  airing  program  material  during  two  segments  of  the  Howard  Stern  Show  on  April  9,  2003,  that  apparently  violate  the  federal  restrictions  regarding  the  broadcast  of  indecent  material.  2 
 Based  upon  the  totality  of  the  evidence  before  us  and  Clear  Channels  history  of  repeated  broadcasts  of  indecent  material  over  stations  licensed  to  its  subsidiaries,  we  conclude  that  these  Clear  Channel 
 subsidiaries  are  apparently  liable  for  forfeitures  totaling  Four  Hundred  Ninety-  Five  Thousand  Dollars  ($  495,000.  00).  Clear  Channel  Broadcasting  Licenses,  Inc.  (  CCBL)  is  apparently  liable  for  a  monetary 
 forfeiture  in  the  amount  of  Two  Hundred  Forty-  Seven  Thousand  Five  Hundred  Dollars  ($  247,  500.00)  for  nine  (9)  apparent  indecency  violations  on  its  captioned  stations.  Citicasters  Licenses,  L.  P.  (  Citicasters) 
 is  apparently  liable  for  a  monetary  for  forfeiture  in  the  amount  of  One  Hundred  Sixty-  five  Thousand 
 1  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80. 
 2  See  18  U.  S.  C.    1464,  47  C.  F.  R.    73.  3999  and  47  U.  S.  C.    503(  b). 
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 Dollars  ($  165,000.00)  for  six  (6)  apparent  indecency  violations  on  its  captioned  stations.  Capstar  TX  Limited  Partnership  (  Capstar)  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  Eighty-Two 
 Thousand  Five  Hundred  Dollars  ($  82,500.00)  for  three  (3)  indecency  violations  on  its  captioned  station. 


 II.  BACKGROUND 
 2.  The  Enforcement  Bureau  received  a  complaint  alleging  that  Station  WBGG-  FM  aired  indecent  material  during  the  Howard  Stern  Show,  on  April  9,  2003,  between  approximately  7:  25  and 
 7:  45  a.  m.  The  complainant  submitted  a  transcript  of  this  broadcast.  3  The  material  at  issue  includes  dialogue  between  cast  members  regarding  the  sexual  practices  of  certain  program  cast  members  and  a 
 discussion  with  a  guest  regarding  Sphincterine,  a  purported  personal  hygiene  product  designed  for  use  prior  to  sexual  activity.  4 


 3.  The  Enforcement  Bureau  sent  Clear  Channel  Broadcasting  Licenses,  Inc.,  the  licensee  of  the  station,  a  letter  of  inquiry,  and  attached  the  transcript  submitted  by  the  complainant.  5  In  its  response, 
 Clear  Channel,  as  the  ultimate  parent  of  the  licensee,  acknowledges  that  on  April  9,  2003,  between  6:  00  and  11:  00  a.  m.,  WBGG-  FM  broadcast  the  Howard  Stern  Show,  which  it  receives  via  a  satellite  feed.  6 
 Clear  Channel  further  states  that  because  the  station  does  not  receive  transcriptions  of  the  show  or  make  recordings  of  the  show,  it  cannot  confirm  with  certainty  that  the  material  provided  in  the  complainants 
 transcription  was  included  in  the  stations  broadcast  of  the  Howard  Stern  Show  on  the  date  and  at  the  time  indicated  in  the  complaint.  7  Clear  Channel  submitted  the  Declaration  of  WBGG-  FMs  producer, 
 however,  who  stated  that  he  recalled  the  material  at  issue  and  that  his  records  do  not  indicate  that  he  deleted  or  flushed  any  of  the  material  aired  during  the  stations  April  9  broadcast  of  the  Howard  Stern 
 Show.  8 
 4.  Clear  Channel  also  states  that,  in  addition  to  WBGG-  FM,  five  other  stations  licensed  to  its  subsidiaries  air  the  Howard  Stern  Show,  and  presumably  aired  the  complained-  of  program.  9  Clear 


 Channel  further  states  that  none  of  these  five  stations  make  permanent  recordings  of  the  Howard  Stern  Show,  and  therefore  cannot  confirm  the  date  and  time  of  their  broadcasts.  10  Clear  Channel  admits 
 however,  that  there  is  no  specific  reason  to  question  that  each  of  these  five  stations  broadcast  the  April  9,  2003,  Howard  Stern  Show  on  that  day  and  in  its  entirety.  11 


 3  Letter  from  complainant,  to  Enforcement  Bureau,  Federal  Communications  Commission,  dated  April  24,  2003. 
 4  Attachment  A,  Program  Transcript. 
 5  Letter  from  the  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  to  Clear  Channel  Broadcasting 
 Licenses,  Inc.,  dated  July  18,  2003.  6 
 See  Letter  from  Richard  W.  Wolf,  Vice  President,  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission,  dated  August  18,  2003  (  Clear  Channel  Response),  at  1. 


 7  Id. 
 8  Clear  Channel  Response  at  1  and  Declaration  of  Clint  Ferro,  WBGG-  FM  producer  for  the  Howard  Stern  Show. 
 Clear  Channel  indicates  that  WBGG-  FM  broadcasts  the  show  on  a  7.  5-  second  delay  so  that  it  can  block  out  or  flush  any  material  that  it  does  not  want  to  air. 


 9  Id.  at  2-  4.  The  five  other  stations  are:  WTKS-  FM,  Cocoa  Beach,  Florida;  WTFX-  FM,  Louisville,  Kentucky; 
 WNVE(  FM),  Honeoye  Falls,  New  York;  KIOZ(  FM),  San  Diego,  California;  and  WXDX-  FM,  Pittsburgh,  Pennsylvania. 


 10  Clear  Channel  Response  at  2-  4. 
 11  Id. 
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 III.  DISCUSSION 
 5.  The  Federal  Communications  Commission  is  authorized  to  license  radio  and  television  broadcast  stations  and  is  responsible  for  enforcing  the  Commissions  rules  and  applicable  statutory 


 provisions  concerning  the  operation  of  those  stations.  The  Commissions  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.  12  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.  13  In  addition,  section  73.3999  of  the  Commissions  rules  provides  that  radio  and  television  stations  shall  not 
 broadcast  obscene  material  at  any  time,  and  shall  not  broadcast  indecent  material  during  the  period  6  a.  m.  through  10  p.  m. 


 6.  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.  14  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.  15  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.  16  As  we  set  forth  in  greater  detail  below,  we  conclude  under  this  standard  that  Clear  Channel  is  apparently 
 liable  for  a  forfeiture  for  its  apparent  willful  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 


 A.  Indecency  Analysis 
 7.  Any  consideration  of  government  action  against  allegedly  indecent  programming  must  take  into  account  the  fact  that  such  speech  is  protected  under  the  First  Amendment.  17  The  federal  courts 


 consistently  have  upheld  Congresss  authority  to  regulate  the  broadcast  of  indecent  material,  as  well  the 
 12  See  U.  S.  CONST.,  amend.  I;  47  U.  S.  C.    326. 
 13  18  U.  S.  C.    1464. 
 14  47  U.  S.  C.    503(  b)(  1)(  B);  47  C.  F.  R.    1.80(  a)(  1);  see  also  47  U.  S.  C.    503(  b)(  1)(  D)(  forfeitures  for  violation  of  18 
 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  operators  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.  15 
 47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f).  16 
 See,  e.  g.,  SBC  Communications,  Inc.,  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  7589,  7591,    4  (2002)(  forfeiture  paid). 


 17  U.  S.  CONST.,  amend.  I;  see  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir.  1988)  (  ACT 
 I). 
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 Commissions  interpretation  and  implementation  of  the  governing  statute.  18  Nevertheless,  the  First  Amendment  is  a  critical  constitutional  limitation  that  demands  that,  in  indecency  determinations,  we 
 proceed  cautiously  and  with  appropriate  restraint.  19 
 8.  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.  20 
 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.  21 


 9.  As  an  initial  matter,  the  material  at  issue  described  sexual  and  excretory  activities  and  organs,  and  Clear  Channel  does  not  dispute  this.  22  The  material,  therefore,  warrants  further  scrutiny  to 
 determine  whether  or  not  it  was  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  23 


 10.  In  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  24  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.  25  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.  26  In  particular  cases, 
 18  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  Childrens  Television  v.  FCC,  932  F.  2d  1504,  1508  (D.  C.  Cir. 


 1991),  cert.  denied,  503  U.  S.  914  (1992)  (  ACT  II);  Action  for  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995),  cert.  denied,  516  U.  S.  1043  (1996)  (  ACT  III). 
 19  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.),  ACT  I,  852  F.  2d  at  1340,  n.  14  (  the  potential  chilling 


 effect  of  the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy.) 
 20  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)).  21 
 Industry  Guidance  on  the  Commissions  Case  Law  Interpreting  18  U.  S.  C.  1464  and  Enforcement  Policies  Regarding  Broadcast  Indecency  (  Indecency  Policy  Statement),  16  FCC  Rcd  7999,  8002,    7-  8  (2001)  (emphasis 


 in  original).  22 
 Clear  Channel  Response  at  5.  23 
 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  at  8002,    8  and  n.  15.  24 
 Id.  at  8002,    9  (emphasis  in  original).  25 
 Id.  at  8002-  15,    8-  23.  26 
 Id.  at  8003,    10. 
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 one  or  two  of  the  factors  may  outweigh  the  others,  either  rendering  the  broadcast  material  patently  offensive  and  consequently  indecent,  27  or,  alternatively,  removing  the  broadcast  material  from  the  realm 
 of  indecency.  28  We  now  turn  to  an  analysis  of  these  factors  as  they  relate  to  each  segment  to  determine  whether  the  material  that  was  broadcast,  in  context,  was  patently  offensive  as  measured  by  contemporary 
 community  standards. 
 11.  First,  we  find  that  the  segment  in  which  the  shows  host  discusses  the  sexual  practices  of  certain  cast  members  to  be  patently  offensive.  Specifically,  the  host,  in  discussing  the  sex  life  of  John,  a 


 fellow  cast  member,  and  Johns  wife,  notes  that  they  have  anal  every  other  time  they  do  it  and  that  Johns  wife  loves  anal.  29  The  host  further  discusses  Johns  wifes  embarrassment  that  intimate  details 
 of  their  sex  life  are  a  topic  of  public  discussion.  30  This  segment  also  includes  the  hosts  comments  regarding  his  personal  revulsion  at  the  thought  of  a  naked,  sweaty,  obese  man  engaging  in  cunnilingus.  31 
 Finally,  during  this  entire  segment,  the  hosts  discussion  of  anal  sex  and  his  commentary  on  oral  sex  are  punctuated  by  the  sound  of  someone  passing  gas  or  evacuating.  Given  the  explicit  description  of  oral  sex 
 and  the  sustained  discussion  of  a  cast  members  anal-  sex  practices,  all  of  which  were  accompanied  by  sound  effects  of  flatulence  and  evacuation,  it  is  clear  that  the  material  was  designed  to  shock  and  pander. 
 This  segment  is  similar  to  material  found  to  contain  patently  offensive  descriptions  of  sexual  activities.  32  Accordingly,  we  find  the  material  in  this  segment  of  the  April  9,  2003,  broadcast  to  be  patently  offensive 
 as  measured  by  contemporary  community  standards  for  the  broadcast  medium,  and  thus  indecent. 
 12.  Based  on  our  finding  that  this  segment  appears  to  be  actionably  indecent,  we  disagree  with  Clear  Channels  contention  that  this  material  is  not  patently  offensive  because  it  was  less  explicit 


 than  other  material  found  to  be  not  actionably  indecent  in  various  unpublished  staff  decisions.  33  Some  of  the  material  at  issue  in  these  unpublished  decisions  was  less  explicit  than  the  material  at  issue  here.  34  To 
 the  extent  that  the  staff,  in  other  unpublished  decisions,  35  may  have  erred  by  determining  that  the  material 


 27  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). 


 28  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).  29 
 Attachment  A  at  11-  12.  Id.  30 
 Id.  31 
 Id.  at  11.  There  is  a  reference  to  oral  sex  as  using  his  mouth  in  a  really  dirty  place.  To  the  extent  that  the  discussion  also  used  innuendo,  rather  than  direct  references,  it  is  nonetheless  sufficient  to  render  the  material 


 actionably  indecent  because  the  sexual  import  of  those  references  was  unmistakable.  See  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002-  04,    9-  12  (2001). 
 32  See,  e.  g.,  Citicasters  Co.  (KEGL(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  16  FCC  Rcd  7546 
 (EB  2001)(  forfeiture  paid)(  conversation  among  hosts  and  adult  film  actors  concerning,  among  other  things,  oral  and  anal  sex);  Infinity  Broadcasting  Corporation  of  Pennsylvania  (WYSP(  FM)),  3  FCC  Rcd  930,  932-  33    20 


 (1987)(  subsequent  history  omitted).  33 
 See  Clear  Channel  Response  at  4-  5,  citing  various  unpublished  staff  denials.  34 
 See  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  dated  May  3,  2002,  EB  -01-  IH-  0326;  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement 


 Bureau,  dated  April.  23,  2002,  EB  -02-  IH-  0078;  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  dated  Feb.  5,  2002,  EB-  01-  IH-  0357. 
 35  See  Clear  Channel  Response  at  4-  5,  citing  Memo  from  Thom  Winkler  to  WIOD(  AM)  Complaint  File,  dated  Apr. 
 21,  1997,  FCC  Ref.  No.  91010196;  Letter  from  Norman  Goldstein,  Chief,  Complaints  and  Political  Programming  Branch,  Enforcement  Division,  Mass  Media  Bureau,  dated  May  15,  1997,  FCC  Ref.  No.  94069521;  Letter  from 


 (continued....) 
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 in  those  cases  was  not  indecent,  those  unpublished  decisions  are  not  binding  on  the  Commission.  36  That  is  particularly  the  case  here,  where  published  decisions,  including  those  cited  in  the  Commissions 
 Indecency  Policy  Statement,  provide  guidance  indicating  that  material  such  as  that  contained  in  this  case  is  indecent.  In  the  instant  case,  we  find  that  the  complained-  of  material  in  this  segment  included 
 references  to  sexual  activity  through  both  direct  references  and/  or  innuendo  that  we  deem  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  37  This  material 
 is  similar  to  other  material  found  to  contain  sufficiently  explicit  and  graphic  references  to  sexual  activity,  and  thus  satisfies  the  first  factor  of  our  contextual  analysis.  38  Moreover,  the  references  to  sexual  activity 
 are  repeated  throughout  the  segment,  and  the  entire  segment  dwells  on  the  sexual  activities  of  certain  cast  members.  The  manner  in  which  this  material  was  presented  establishes,  under  the  third  factor,  that  the 
 segment  was  used  to  pander,  titillate  and  shock  listeners. 
 13.  In  the  other  relevant  segment,  there  is  a  discussion  of  Sphincterine,  a  purported  personal  hygiene  product.  We  also  find  that  this  segment  is  patently  offensive.  Specifically,  the  shows 


 host  interviewed  the  inventor  of  Sphincterine  and  promoted  the  sale  of  the  product.  During  the  course  of  this  interview,  the  host  and  guest  made  repeated  references  to  oral  sex  and  to  the  olfactory  aspects  of 
 excretory  activity.  For  instance,  the  host  noted  that  the  guest  had  invented  Sphincterine  because  a  chick  was  giving  you  oral  and  you  had  swamp  ass.  39  The  host  elicited  specific  information  about  the 
 encounter  that  lead  to  the  creation  of  the  product,  namely  that  odors  emanating  from  the  inventors  genital  area  repelled  his  girlfriend  when  she  had  attempted  to  initiate  fellatio.  40  Finally,  this  segment,  like  the 
 earlier  one  involving  discussions  involving  anal  sex,  was  interspersed  with  the  sound  of  flatulence.  Given  the  detailed  discussion  of  the  sounds  and  smells  associated  with  excretory  activity  and  oral  sex,  which 
 were  accompanied  by  the  sound  effects  of  flatulence  and  were  dwelled  upon,  it  is  clear  that  the  material  was  used  to  shock  and  pander.  Accordingly,  we  also  find  the  material  in  this  segment  of  the  April  9, 
 2003,  broadcast  to  be  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium. 


 14.  We  disagree  with  Clear  Channels  argument  that  this  material  does  not  dwell  on  or  repeat  at  length  descriptions  of  sexual  or  excretory  activities  and  that  the  material  was  not  intended  to  pander, 
 nor  was  it  presented  for  its  shock  value.  41  The  discussion  of  the  use  of  Sphincterine,  including  references  to  sexual  and  excretory  organs  and  activities,  was  sustained.  42  Moreover,  the  discussion 
 included  commentary  and  sound  effects  such  that  the  tone  of  the  discussion  is  vulgar  and  lewd.  There  are 


 (...  continued  from  previous  page)  Norman  Goldstein,  Chief,  Complaints  and  Political  Programming  Branch,  Enforcement  Division,  Mass  Media 
 Bureau,  dated  Jan.  23,  1997,  FCC  Ref.  No.  94110410.  36 
 See,  e.  g.,  Amor  Family  Broadcasting  Group  v.  FCC,  918  F.  2d  960,  962  (D.  C.  Cir.  1990),  citing  Homemakers  North  Shore,  Inc.  v.  Bowen,  832  F.  2d  408,  413  (7  th  Cir.  1987).  See  also  Lorenzo  Jelks  v.  FCC,  146  F.  3d  878,  881 


 (D.  C.  Cir.  1998). 
 37  See  Attachment  A,  Program  Transcript  at  11-  12. 
 38  See  Clear  Channel  Broadcasting  Licenses,  Inc.(  WPLA(  FM),  WCKT(  FM)),  Notice  of  Apparent  Liability  for 
 Monetary  Forfeiture,  19  FCC  Rcd  1768,    9  (2004).  39 
 Attachment  A,  Program  Transcript  at  12.  40 
 Id.  at  13.  41 
 Clear  Channel  Response  at  6.  42 
 See,  e.  g.,  Emmis  Radio  License  Corporation  (WKQX(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  17  FCC  Rcd  5263,  5266    10-  11  (EB  2002);  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd 


 21697,  21699    9  (EB  2002),  recon.  denied,  Memorandum  Opinion  and  Order,  19  FCC  Rcd  2697  (EB  2004). 
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 repeated  flatulence  sound  effects  interspersed  in  the  discussion  of  the  use  of  the  product  prior  to  sex  43  and  the  shows  host  comments  on  his  own  personal  hygiene  practices  such  that  he  would  shower  before 
 initiating  sexual  activity  with  the  guests  girlfriend.  44  Thus,  unlike  the  unpublished  staff  decisions  cited  by  Clear  Channel,  45  the  overall  context  in  which  the  material  was  presented  appears  to  have  been  used  to 
 pander  and  shock.  46 
 15.  After  reviewing  the  record,  we  believe  that  these  two  segments  of  the  April  9,  2003,  Howard  Stern  Show  are  patently  offensive  within  the  meaning  of  our  indecency  definition.  As  to  the 


 first  segment,  we  find  that  the  material  involving  a  discussion  of  the  sexual  practices,  including  anal  sex,  between  certain  of  the  shows  cast  members,  is  patently  offensive.  47  As  for  the  second  segment,  we  find 
 that  the  discussion  of  Sphincterine,  a  product  purportedly  developed  for  maintaining  anal  and  genital  hygiene,  is  patently  offensive.  48  In  the  second  segment,  two  individuals  uttered  apparently  indecent 
 material,  whereas  in  the  first  segment  one  individual  uttered  apparently  indecent  material.  The  broadcast  over  Station  WBGG-  FM  took  place  after  the  Commissions  notice  that  it  might  treat  separate  utterances 
 as  separate  violations.  49  We  believe  that,  under  the  specific  circumstances  at  issue  here,  it  is  appropriate  to  treat  the  statements  by  each  of  the  individuals  as  two  separate  utterances  and  therefore  two  separate 
 violations,  contrary  to  our  more  traditional  approach  of  treating  a  specific  program  or  program  segment  as  indecent.  50  Consequently,  we  conclude  that  there  are  three  (3)  apparent  violations  of  the  Commissions 
 indecency  rules  for  each  of  the  captioned  stations  that  aired  this  material.  Three  of  the  captioned  stations  are  licensed  to  CCBL,  and  thus  CCBL  is  apparently  liable  for  a  total  of  nine  (9)  indecency  violations. 
 Citicasters  is  the  licensee  of  two  of  the  captioned  stations,  and  thus  is  apparently  liable  for  a  total  of  six  (6)  indecency  violations,  and  Capstar  is  the  license  of  one  captioned  station,  and  thus  is  liable  for  a  total 
 of  three  (3)  indecency  violations. 
 16.  It  is  undisputed  that  the  complained-  of  material  was  broadcast  within  the  6  a.  m.  to  10  p.  m.  time  frame  relevant  to  an  indecency  determination  under  section  73.3999  of  the  Commissions  rules. 


 Thus,  because  there  was  a  reasonable  risk  that  children  may  have  been  in  the  audience  at  the  time  that  the  material  at  issue  was  broadcast  on  April  9,  2003,  the  material  broadcast  is  legally  actionable.  51  By 
 broadcasting  this  material,  Clear  Channel  apparently  violated  the  prohibitions  in  18  U.  S.  C.    1464  and  the  Commissions  rule  against  broadcast  indecency.  The  Commission  is  aware  that  the  Howard  Stern 
 Show  originates  and  is  broadcast  over  stations  owned  by  Infinity  Broadcasting  Corporation.  We  instruct  the  Enforcement  Bureau  to  initiate  an  investigation  into  Infinitys  broadcast  of  the  April  9,  2003, 


 43  Attachment  A,  Program  Transcript,  at  12-  14. 
 44  Id.  at  12. 
 45  Clear  Channel  Response  at  6,  citing  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division, 
 Enforcement  Bureau,  dated  Feb.  5,  2002,  EB-  01-  IH-  0315;  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  dated  April  22,  2002,  EB-  02-  IH-  0040. 


 46  See,  e.  g.,  Citicasters  Co  (KSJO(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  15  FCC  Rcd  19095, 
 19096,  6  (EB  2000)(  forfeiture  paid)  (discussion  of  sexual  techniques  featuring  nationally  recognized  sex  therapist  and  certified  clinical  sexologist  presented  in  pandering  and  titillating  manner). 


 47  Attachment  A,  Program  Transcript  at  11-  12,  ending  at  ***. 
 48  Id.  at  12-  14,  beginning  after  ***. 
 49  Infinity  Broadcasting  Operations,  Inc.,  (WKRK-  FM),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  18 
 FCC  Rcd  6915,  6918-  19,    12  (2003),  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  18  FCC  26360  (2003),  recon.  denied,  19  FCC  Rcd  ____,  FCC  04-  34  (rel.  Mar.  5,  2004). 


 50  In  this  regard,  we  note  that,  depending  on  the  facts  in  specific  cases,  we  may  also  treat  some  of  the  specific  words 
 or  phrases  spoken  by  one  individual  to  be  separate  utterances  themselves  and  therefore  separate  violations.  51 
 See  ACT  III,  58  F.  3d  at  660-  63. 
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 Howard  Stern  Show  at  issue  in  this  case. 
 B.  Proposed  Forfeiture 
 17.  Based  upon  our  review  of  the  record  in  this  case,  we  conclude  that  CCBL,  Citicasters  and  Capstar,  subsidiaries  of  Clear  Channel,  are  apparently  liable  for  the  willful  and  repeated  violation  of  our 


 rules.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000  for  transmission  of  indecent  or  obscene  materials.  52  The  Forfeiture  Policy  Statement  also  specifies  that  the 
 Commission  shall  adjust  a  forfeiture  based  upon  consideration  of  the  factors  enumerated  in  section  503(  b)(  2)(  D)  of  the  Act,  47  U.  S.  C.    503(  b)(  2)(  D),  such  as  the  nature,  circumstances,  extent  and  gravity 
 of  the  violation,  and,  with  respect  to  the  violator,  the  degree  of  culpability,  any  history  of  prior  offenses,  ability  to  pay,  and  such  other  matters  as  justice  may  require.  53  In  this  case,  taking  all  of  these  factors  into 
 consideration,  we  find  that  CCBL,  Citicasters  and  Capstar  are  apparently  liable  for  the  maximum  statutory  forfeiture  amount  of  Twenty-  Seven  Thousand  Five  Hundred  Dollars  ($  27,500.00)  for  each 
 apparent  indecency  violation.  In  particular,  there  is  a  recent  history  of  indecent  broadcasts  on  stations  controlled  by  Clear  Channel,  the  corporate  parent  of  CCBL,  Citicasters  and  Capstar,  which  justifies 
 imposition  of  the  statutory  maximum  forfeiture  amount  for  each  of  the  apparent  indecency  violations.  54 
 18.  Because  we  find  that  CCBL,  Citicasters  and  Capstar  apparently  violated  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules  by  broadcasting  the  complained  of  material  and  that 


 and  that  each  violation  is  subject  to  an  apparent  forfeiture  in  the  amount  of  $27,500,  we  conclude  that  CCBL  is  liable  for  a  monetary  forfeiture  in  the  amount  of  Two  Hundred  Forty-  Seven  Thousand  Five 
 Hundred  Dollars  ($  247,500.00),  that  Citicasters  Licenses,  L.  P.  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  One  Hundred  Sixty-  Five  Thousand  Dollars  ($  165,000.00)  and  that  Capstar  is 
 apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  Eighty-  Two  Thousand  Five  Hundred  Dollars  ($  82,500.00)  for  willfully  and  repeatedly  broadcasting  indecent  material  during  the  Howard  Stern  Show 
 on  April  9,  2003.  55  Thus,  the  aggregate  forfeiture  against  these  subsidiaries  of  Clear  Channel  is  Four  Hundred  Ninety-  Five  Thousand  Dollars  ($  495,000.00).  We  remind  licensees  that  serious,  repeated  cases 
 of  indecency  violations  could  be  subject  to  license  revocation. 
 IV.  ORDERING  CLAUSES 
 19.  ACCORDINGLY,  IT  IS  ORDERED,  pursuant  to  section  503(  b)  of  the  Communications 


 52  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).  The  Commission  amended  its  rules  to  increase  the  maximum  penalties  to  account 


 for  inflation  since  the  last  adjustment  of  the  penalty  rates.  The  new  rates  apply  to  violations  that  occur  or  continue  after  November  13,  2000.  See  Order,  In  the  Matter  of  Amendment  of  Section  1.80(  b)  of  the  Commissions  Rules  and 
 Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  15  FCC  Rcd  18221  (2000). 
 53  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17100-  01,    27. 
 54  AMFM  Radio  Licenses,  LLC  (WWDC(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  18  FCC  Rcd 
 19917  (2003)  (forfeiture  paid);  Citicasters  Co.  (KEGL(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture  16  FCC  Rcd  7546  (EB  2001)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  Notice  of  Apparent  Liability  for 


 Monetary  Forfeiture,  15  FCC  Rcd  19095  (EB  2000)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  15  FCC  Rcd  19091  (EB  2000)  (forfeiture  paid). 
 55  The  forfeiture  amount  proposed  against  each  station  of  each  Clear  Channel  subsidiary  is  allocated  on  the  basis  of 
 three  indecency  violations  per  station,  and  $27,500.  00  per  violation,  for  a  total  of  $82,  500.  00  (3  x  $27,500.00)  per  station. 
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 Act  of  1934,  as  amended,  and  section  1.80  of  the  Commissions  rules,  56  that  Clear  Channel  Broadcasting  Licenses,  Inc.  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of 
 Two  Hundred  Forty-  Seven  Thousand  Five  Hundred  Dollars  ($  247,500.00)  for  willfully  violating  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 


 20.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  section  1.80  of  the  Commissions  rules,  57  that  Citicasters  Licenses,  L.  P.,  is  hereby 
 NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  One  Hundred  Sixty-Five  Thousand  Dollars  ($  165,000.00)  for  willfully  violating  18  U.  S.  C.    1464  and  section  73.3999  of  the 
 Commissions  rules. 
 21.  IT  IS  FURTHER  ORDERED  pursuant  to  section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  section  1.80  of  the  Commissions  rules,  58  that  Capstar  TX  Limited  Partnership  is 


 hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  Eighty-  Two  Thousand  Five  Thousand  Dollars  ($  82,500.00)  for  willfully  violating  18  U.  S.  C.    1464  and  section 
 73.3999  of  the  Commissions  rules. 
 22.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  NAL,  Clear  Channel  Broadcasting  Licenses,  Inc.  SHALL 


 PAY  the  full  amount  of  the  proposed  forfeiture  ($  247,500.00)  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 23.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  NAL,  Citicasters  Licenses,  L.  P.  SHALL  PAY  the  full  amount 
 of  the  proposed  forfeiture  ($  165,000.00)  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 24.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  NAL,  Capstar  TX  Limited  Partnership  SHALL  PAY  the  full 
 amount  of  the  proposed  forfeiture  ($  82,500.00)  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 25.  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. 
 26.  The  response,  if  any,  must  be  mailed  to  William  Davenport,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  445  12  th  Street,  S.  W, 


 Room  3-  B443,  Washington  D.  C.  20554  and  MUST  INCLUDE  the  NAL/  Account  Number  referenced  above. 


 27.  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 


 56  47  C.  F.  R.    1.80. 
 57  47  C.  F.  R.    1.80. 
 58  47  C.  F.  R.    1.80. 
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 (  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. 
 28.  Requests  for  payment  of  the  full  amount  of  this  NAL  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Operations  Group,  445  12th  Street,  S.  W.,  Washington,  D.  C. 


 20554.  59 
 29.  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  Clear  Channel  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  Clear  Channel,  including  its  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  NAL.  This  information  will  be  used  for 
 tracking  purposes  only.  Clear  Channels  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. 


 30.  Accordingly,  IT  IS  ORDERED,  that  the  complaint  filed  against  Station  WBGG-  FMs  broadcast  of  the  Howard  Stern  Show  on  April  9,  2003,  IS  GRANTED  to  the  extent  indicated  herein, 
 AND  IS  OTHERWISE  DENIED,  and  the  complaint  proceeding  IS  HEREBY  TERMINATED.  60 
 31.  IT  IS  FURTHER  ORDERED,  that  a  copy  of  this  NAL  shall  be  sent  by  Certified  Mail  Return  Receipt  Requested  to  Mr.  Richard  W.  Wolf,  Vice  President,  Clear  Channel  Communications,  Inc., 


 c/  o  Clear  Channel  Worldwide,  200  East  Basse  Road,  San  Antonio,  Texas  78209-  8328,  to  Clear  Channel  Broadcasting  Licenses,  Inc.,  Citicasters  Licenses,  L.  P.,  and  Capstar  TX  Limited  Partnership,  2625  S. 
 Memorial  Drive,  Suite  A,  Tulsa,  Oklahoma  74129,  with  a  copy  to  Clear  Channels  counsel,  John  M.  Burgett,  Esq.,  Wiley,  Rein  &  Fielding,  LLP,  1776  K  Street,  N.  W.,  Washington,  D.  C.,  20006,  and  to  the 
 complainant. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 


 59  See  47  C.  F.  R.    1.1914. 
 60  Consistent  with  section  503(  b)  of  the  Act  and  consistent  Commission  practice,  for  the  purposes  of  the  forfeiture 
 proceeding  initiated  by  this  NAL,  Clear  Channel  and  its  subsidiaries  Clear  Channel  Broadcasting  Licenses,  Inc.,  Citicasters  Licenses,  L.  P.  and  Capstar  TX  Limited  Partnership,  shall  be  the  only  parties  to  this  proceeding. 
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 ATTACHMENT  A 
 Program  Transcript 
 EB-  03-  IH-  0159 
 Radio  Station:  WBGG-  FM,  Fort  Lauderdale,  Florida  Date/  Time  Broadcast:  April  9,  2003,  between  7:  25  and  7:  45  a.  m. 
 Material  Broadcast:  The  Howard  Stern  Show 


 Stern:  Johns  anal  talk.  John  revealed  that  in  his  sex  life  with  his  wife  they  have  anal  every  other  time  they  do  it.,  [Sound  of  flatulence  or  anal  evacuation]  which  seems  excessive.  Some  people  wrote  in. 
 Heres  one:  John  must  have  some  homosexual  fantasies  based  on  his  need  for  [flatulence]  anal.  [flatulence]  We  all  know  it  doesnt  feel  nearly  as  good  as  straight  sex.  I  dont  know  if  a  man  or  a 
 woman  wrote  that.  [flatulence] 
 Jesus  H.  Christ,  just  the  thought  of  that  [flatulence]  obese  slob  Artie  on  the  bed  all  sweaty,  hairy,  and  naked  giving  his  girlfriend  [flatulence]  a,  what  do  you  call  that,  using  his  mouth  in  a  really  dirty  place 
 makes  we  want  to  friggin  shoot  myself.  Imagining  the  scene  with  Bobbabooey  was  no  better.  [flatulence]. 


 Robin:  Oh,  my  God. 
 Finally,  if  Stuttering  John  keeps  up  with  his  every  other  time  [flatulence][  at  this  point  you  can  clearly  hear  that  something  is  deleted  or  dumped  from  Sterns  commentary  by  means  of  the  broadcast  delay 
 capability]  unless  of  course  hes  so  small  that  it  isnt  much  of  a  strain  on  her. 
 John:  Hey,  Howard,  I  was  only  kidding  about  that. 
 Stern:  No  you  werent.  Why,  your  wife  came  down  on  you? 
 John:  Lets  just  say  it  wasnt  a  pleasant  day  in  the  Menendez  household. 
 Stern:  Really,  why?  Is  she  embarrassed? 
 John:  Yes,  she  doesnt,  you  know,  want  our  sex  life  out  [flatulence]. 
 Stern:  Oh  please!  So,  what,  no  more  anal? 
 John:  [flatulence]  Lets  just  say  its  every  once  in  awhile  [flatulence]. 
 Stern:  Aye,  yi,  yi.  You  were  lying,  then,  yesterday. 
 John:  Yeah,  I  was  lying  [flatulence]. 
 Stern:  Okay.  What? 
 Another  voice:  You  know  what?  The  in-  laws  heard.  Thats  got  to  be  tough. 
 Stern:  Was  it  the  in-  laws? 
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 John:  No,  no,  she  just  happened  to  turn  it  on  and  goes  What  is  this? 
 Stern:  But  Ive  heard  from  her  [flatulence]  that  she  loves  anal. 
 John:  Yes,  but  thats  at  the  dinner  table  with  us,  not  with  the  whole  world  listening  [flatulence]. 
 Another  voice,  imitating  Johns  mother-  in-  law:  I  saw  you  telling  everyone  that  you  give  anal  to  my  daughter.  [flatulence] 


 *  *  * 
 Stern:  So  Bruce,  Im  going  to  let  you  plug  your  product  Sphincterine.  Now  I  even  said  Id  let  you  do  your  jingle.  Give  them  the  Sphincterine  jingle,  first  of  all. 


 Bruce:  All  right,  this  is  a  band  called  the  Dead  Beatles.  [Musical  jingle  begins]:  Sphincterine  makes  you  tingle,  feel  so  clean.  Oh,  Sphincterine.  Cleans  you  sphincter  and  whats  between.  Ho,  hey! 
 Stern:  What  did  you  pay  for  that? 
 Bruce:  Nothing,  thats  my  band  the  Dead  Beatles. 
 Stern:  The  Sphincterine  product.  How  much  money  have  you  invested  in  this  so  far  would  you  say? 
 Bruce:  Probably  about  twenty  grand. 
 Stern:  And  its   
 Robin:  How  much  have  you  made? 
 Bruce:  I  probably  have  tripled  that  in  just  about  six  months,  nine  months. 
 Robin:  Really? 
 Stern:  You  say  you  invented  Sphincterine  because  a  chick  was  giving  you  oral  and  you  had  a  swamp  ass? 
 Bruce:  Yeah,  thats  basically  it,  Howard,  yeah.  I  had  a  bad  experience  and  my  girl  friend  whos  in  the  green  room  right  now  was  in  a  spontaneous  mood  and  she  caught  me  at  a  bad  time  and   


 Stern:  Is  you  girlfriend  good  looking? 
 Bruce:  Yeah,  shes  cute. 
 Stern:  Yeah.  So,  oh,  let  me  talk  to  her.  I  want  to  hear  what  swamp  ass  smells  like. 
 Bruce:  Im  not  sure  shes  going  to  want  to  do  this. 
 Stern:  What,  describe  swamp  ass? 
 Bruce:  She  can  describe  swamp  ass,  but  Im  not  so  sure  she  wants  to  go  on  the  air. 
 Stern:  So,  when  you  develop  a  product,  are  you  a  chemist,  that  you  would  know  how  to  do  it? 
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 Bruce:  Yes. 
 Stern:  What? 
 Bruce:  Im  a  chemist.  I  develop  products  for  a  natural  product  company.  And,  uh,   
 Stern:  So  you  decided  to  branch  out  on  your  own. 
 Bruce:  Yeah. 
 Stern:  Oh,  theres  your  girlfriend.  She  is  cute. 
 Bruce:  Thank  you. 
 Stern:  So  you  were  giving  this  animal  oral,  and  you  said  Man  youve  got  swamp  ass?  Was  that  how  it  went  down? 


 Female  Guest  (Cat):  Actually  no,  I  went  close  for  oral. 
 Bruce:  How  close?  Nine  inches  away,  I  think  it  was. 
 Cat:  Yeah. 
 Stern:  Yeah.  And  you  just  said   
 Robin:  You  couldnt  get  any  closer. 
 Stern:  And  you  said,  Oh,  my  God.  You  stink.  [recording  of  flatulence  noise]  What  happened?  Had  you  gone  to  the  bathroom  that  day  and  not  showered? 


 Bruce:  Yeah,  it  was  like  the  end  of  the  day,  and  Cat  is  a  spontaneous  woman  and  she  just  caught  me  with  my  pants  down  [flatulence  noise]. 
 Stern:  Okay  [flatulence  noise]  and  youre  hot  by  the  way. 
 Cat:  Thank  you. 
 Stern:  Yeah.  What  are  you  doing  with  a  guy  with  swamp  ass?  [flatulence] 
 Bruce:  Hey,  it  was  a  one  shot  deal. 
 Stern:  Honey,  before  Id  bang  you  Id  take  a  nice  shower. 
 Cat:  You  would? 
 Stern:  Yeah,  I  sure  would 
 Cat:  Oh.  That  would  be  nice. 
 Stern:  Yeah.  So   
 Bruce:  I  go  beyond  that.  Now  I  Sphincterine  before  I  bang  her. 
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 Stern:  Talk  about  Sphincterine.  So,  you  developed  this  product,  and  lets  say  I  go  to  the  bathroom,  and  I  dont  feel  fresh. 
 Bruce:  You  were  talking  recently  about  when  you  go  to  the  bathroom,  you  use  toilet  paper  with  water  on  it.  This  product  is  really  excellent  for  that  particular  situation  you  have. 
 Stern:  What  is  it,  a  spray  bottle  or  a  cream? 
 Bruce:  Its  a  liquid,  and  it  also  comes  in  towelettes.  So  what  youve  got  is  something  that  you,  the  liquid,  that  you  apply  to  toilet  paper  like  water,  as  you  once  said  on  the  air. 


 Stern:  I  see. 
 Bruce:  You  put  it  on,  its  all  natural  ingredients. 
 Stern:  Is  it  like  a  baby  wipe? 
 Bruce:  Its  like  a  baby  wipe,  but  those  wipes  are  loaded  with  chemicals  and  bad  ingredients.  This  is  all  natural,  and  it  feels  good.  And  you  know,  Im  going  to  let  Cat  talk  about  another  purpose,  uh,  Cat. 


 Stern:  I  dont  know  if  I  want  an  infomercial. 
 Bruce:  No,  Howard,  this  is  cool. 
 Stern:  You  know  your  dog  was  probably  going  to  beat  Artie  anyway. 
 Bruce:  The  bottom  line  is  that  Cat  uses  it  on  the  front  as  well. 
 Stern:  Really?  No  problems  using  that?  It  doesnt  affect  you  in  anyway? 
 Cat:  No.  Actually,  but  it  has  a  nice  effect.  It  makes  you  tingle 
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 October  2002  ATTACHMENT  B 
 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. 


 International  Services  International  Broadcast  Stations 
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 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) 
 Broadband  Personal  Communications  Services  (Block  F) 
 Narrowband  Personal  Communications  Services 


 Auction  special  size  standard  -  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) 


 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 
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 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  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 
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 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) 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Licensee  of  Stations  WBGG-  FM,  Fort  Lauderdale,  Florida,  WTKS-  FM,  Cocoa  Beach,  Florida,  and  WTFX-  FM,  Louisville,  Kentucky;  Citicasters  Licenses, 
 L.  P.,  Licensee,  Stations  KIOZ(  FM),  San  Diego,  California,  and  WNVE(  FM),  Honeoye  Falls,  New  York;  and  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WXDX-  FM,  Pittsburgh,  Pennsylvania,  Notice  of 
 Apparent  Liability  for  Forfeiture 
 I  have  long  advocated  that  the  Commission  use  all  of  the  tools  it  has  to  tackle  indecency  on  the  publics  airwaves.  Todays  decision  is  a  step  forward  towards  imposing  meaningful  fines.  For  the  first 
 time,  the  Commission  assesses  a  fine  against  more  than  a  single  utterance,  rather  than  counting  an  entire  program  as  one  utterance.  In  addition,  the  Commission  makes  clear  that  its  indecency  enforcement  will 
 address  not  only  the  station  that  is  the  subject  of  a  complaint,  but  also  any  other  station  that  aired  the  same  programming.  I  therefore  vote  to  approve  this  decision. 
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 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Licensee  of  Stations  WBGG-  FM,  Fort  Lauderdale,  Florida,  WTKS-  FM,  Cocoa  Beach,  Florida,  WTFX-  FM,  Louisville,  Kentucky; 
 Citicasters  Licenses,  L.  P.,  Licensee  of  Stations  KIOZ(  FM),  San  Diego,  California,  WNVE(  FM),  Honeoye  Falls,  New  York;  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WXDX-  FM, 
 Pittsburgh,  Pennsylvania;  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.  For  the  first  time,  we  impose  fines  based  upon  separate  utterances.  While  this  is  not  the  most  egregious  case  that  I  have  seen,  the  material 
 broadcast  is  indecent  under  our  standards  and  the  fines  appropriately  account  for  the  violation  of  our  rules. 


 Since  I  arrived  at  the  Commission,  we  have  greatly  stepped  up  our  enforcement  against  indecent  broadcasts.  I  expect  that  stepped-  up  actions  like  those  we  take  today  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. 
20