*Pages 1--3 from  Microsoft Word - 4152.doc*
 Federal  Communications  Commission  DA  00-  2313 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 COMMUNICAST  CONSULTANTS,  INC. 
 Licensee  of  Station  KRXK(  AM) 
 Rexburg,  Idaho 


 ) 
 ) 
 )  Control  No.  CN9900724 
 )  NAL/  Acct.  No.  X32080018 
 )  Facility  No.  12664 
 )  JJS 
 ) 
 ) 


 FORFEITURE  ORDER 


 Adopted:  October  11,  2000  Released:  October  12,  2000 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  forfeiture  order,  we  impose  a  seven  thousand  dollar  ($  7,000)  forfeiture  against  Communicast  Consultants,  Inc.  (  CCI),  licensee  of  KRXK(  AM),  Rexburg,  Idaho.  We  find  that  CCI 
 violated  18  U.  S.  C.  1464  and  Section  73.3999  of  the  Commissions  rules,  47  C.  F.  R.    73.3999,  by 
 broadcasting  indecent  material. 


 2.  On  July  14,  2000,  the  Chief,  Enforcement  Bureau,  issued  a  Notice  of  Apparent  Liability  for  Forfeiture  in  the  amount  of  seven  thousand  dollars  ($  7,000)  against  CCI.  Communicast  Consultants,  Inc., 
 DA  00-  1567  (released  July  14,  2000)  (  NAL).  CCI  filed  its  response  on  September  7,  2000. 
 II.  BACKGROUND 
 3.  The  Commission  received  a  complaint  alleging  that  CCI  broadcast  indecent  material  during  a  Spanish-  language  call-  in  talk  show  on  or  about  January  12,  1999,  between  8  a.  m.  and  10  a.  m.  A  transcript 
 of  the  broadcast  in  question  was  attached  to  the  NAL.  We  issued  letters  of  inquiry,  asking  CCI  to  comment 
 on  the  complaint.  CCI  responded  to  our  inquiries,  asserting  that  the  material  is  not  indecent  and  asking  that 
 it  be  allowed  to  provide  a  certified  English  translation  of  the  Spanish  program  if  the  Commission  decided  to 
 pursue  this  matter  further.  On  May  23,  2000,  we  asked  CCI  to  provide  a  certified  translation.  In  a  phone 
 conversation  with  Commission  staff  on  June  14,  2000,  counsel  authorized  to  speak  on  behalf  of  CCI  stated 
 that  CCI  accepts  the  transcript  provided  in  the  letter  of  inquiry  and  would  not  be  filing  a  certified 
 translation. 


 III.  DISCUSSION 
 4.  In  arguing  in  its  response  that  the  material  was  not  indecent,  CCI  claims  that  the  broadcast  used  correct  anatomical  terms  that  would  be  heard  in  any  clinical  or  instructional  course  on  human  sexuality.  CCI 
 asserts  that  the  material  was  not  patently  offensive  and  that  the  NAL  failed  to  consider  adequately  the  context  of 
 the  conversation.  Additionally,  CCI  argues  that  the  NAL  is  defective  because  it  did  not  make  any  findings 
 concerning  the  contemporary  community  standards  of  the  Spanish-  speaking  community  in  the  Rexburg,  Idaho, 
1
 Federal  Communications  Commission  DA  00-  2313 
 2 
 area.  According  to  CCI,  nearly  all  children  in  the  Rexburg  area  would  have  been  in  school  when  the  program 
 was  broadcast  and  the  Commission  has  not  demonstrated  that  any  children  heard  the  broadcast.  CCI  claims  that 
 even  if  the  program  were  indecent,  there  was  no  willful  violation  because  the  programming  was  received  by 
 satellite  and  the  station  had  no  way  of  knowing  what  would  be  broadcast.  It  also  asserts  that  approximately  thirty 
 other  stations  broadcast  the  program  in  question  and  that  the  Commission  has  engaged  in  selective  enforcement 
 by  taking  action  only  against  KRXK(  AM).  Finally,  CCI  argues  that  a  $7,000  forfeiture  exceeds  the  profits 
 KRXK(  AM)  has  earned  during  the  period  CCI  has  been  the  licensee  and  that  such  a  forfeiture  would  be 
 economically  crippling.  (Emphasis  in  Original). 


 5.  First,  we  reject  CCIs  argument  that  the  material  was  not  indecent.  The  Commission  defines  broadcast  indecency  as  language  or  material  that,  in  context,  depicts  or  describes,  in  terms  patently  offensive  as 
 measured  by  contemporary  community  standards  for  the  broadcast  medium,  sexual  or  excretory  activities  or 
 organs.  Infinity  Broadcasting  Corporation  of  Pennsylvania,  2  FCC  Rcd  2705  (1987),  affd  3  FCC  Rcd  930 
 (1987)(  subsequent  history  omitted)(  citing  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978)).  CCI  does  not 
 dispute  that  the  material  discusses  sexual  activities,  but  it  denies  that  the  material  is  patently  offensive.  While 
 the  use  of  certain  terms  does  not  automatically  make  material  indecent,  we  believe  the  graphic  sexual  references, 
 as  well  as  the  announcers  comments,  laughter,  and  jokes,  show  that  the  material  was  offered  in  a  pandering, 
 titillating  manner,  rendering  the  material  patently  offensive. 


 6.  CCIs  argument  that  the  Commission  must  have  evidence  about  the  community  standards  of  the  Spanish-  speaking  community  in  the  Rexburg  area  in  order  to  find  an  indecency  violation  is  incorrect. 
 The  Commissions  interpretation  of  the  term  contemporary  community  standards  is  consistent  with  the 
 definition  set  forth  in  the  Supreme  Courts  decision  in  Hamling  v.  United  States,  418  U.  S.  87  (1974),  rehg 
 denied,  419  U.  S.  885  (1974).  In  that  case,  which  involved  obscenity,  the  Court  explained  that  the 
 purpose  of  contemporary  community  standards  was  to  ensure  that  material  is  judged  neither  on  the  basis 
 of  a  decisionmakers  personal  opinion,  nor  by  its  effect  on  a  particularly  sensitive  or  insensitive  person  or 
 group.  Infinity  Broadcasting  Corporation  of  Pennsylvania  (WYSP(  FM)),  3  FCC  Rcd  930,  933  (1987) 
 (subsequent  history  omitted),  citing  418  U.  S.  at  107.  The  Court  stated  that  decisionmakers  need  not  use 
 any  precise  geographic  area  in  evaluating  material.  3  FCC  Rcd  at  933,  citing  418  U.  S.  at  104-  05. 
 Consistent  with  Hamling,  the  Commissions  evaluation  of  allegedly  indecent  material  is  not  one  based  on 
 a  local  standard,  but  one  based  on  a  broader  standard  for  broadcasting  generally.  3  FCC  Rcd  at  933.  We 
 also  reject  CCIs  suggestion  that  we  should  not  take  enforcement  action  because  most  children  would  be  in 
 school  during  the  time  of  the  broadcast.  Congress  has  directed  the  Commission  to  enforce  the  ban  on 
 indecent  broadcasts  during  the  morning  time  period  at  issue  in  this  case,  and  the  United  States  Court  of 
 Appeals  for  the  District  of  Columbia  Circuit  has  upheld  that  directive.  See  Action  for  Childrens 
 Television  v.  FCC,  852  F.  2d  1332,  1341  (D.  C.  Cir.  1988). 


 7.  CCI  may  not  correctly  contend  that  the  violation  was  not  willful  because  the  program  was  a  syndicated  program  received  by  satellite  and  the  station  had  no  way  of  knowing  what  would  be  broadcast. 
 For  purposes  of  Section  503(  b)  of  the  Act,  the  term  willful  means  that  the  violator  knew  it  was  taking  the 
 action  in  question,  irrespective  of  any  intent  to  violate  the  Commissions  rules.  See  Southern  California 
 Broadcasting  Co.,  6  FCC  Rcd  4387  (1991).  In  this  case,  CCI  knew  it  was  broadcasting  the  program.  The 
 Commission  has  emphasized  that  the  licensee  is  ultimately  responsible  for  all  programming  aired  on  its  station, 
 regardless  of  its  source.  Revision  of  Radio  Rules  and  Policies,  7  FCC  Rcd  6387,  6401  (1992).  Moreover,  CCI 
 could  have  used  a  delay  mechanism  to  monitor  the  broadcast  to  ensure  that  inappropriate  material  was  not  aired. 
 Since  CCI  knowingly  broadcast  the  program,  its  actions  were  willful  within  the  meaning  of  the  statute. 


 8.  We  also  reject  the  argument  that  our  decision  to  issue  an  NAL  represents  improper  selective  enforcement.  As  is  the  case  with  virtually  all  of  our  indecency  cases,  we  initiated  this  investigation  in  response 
2
 Federal  Communications  Commission  DA  00-  2313 
 3 
 to  a  complaint  filed  against  KRXK(  AM).  If  we  had  received  complaints  against  other  stations  that  had  broadcast 
 the  same  program,  we  would  have  similarly  initiated  an  investigation  and  taken  appropriate  enforcement  action. 
 Congress  has  directed  us  to  enforce  the  restrictions  on  broadcast  indecency,  and  CCI  has  not  shown  that  it  was 
 treated  differently  than  any  other  station  against  which  a  complaint  was  filed. 


 9.  Finally,  we  cannot  accept  CCIs  claim  that  a  $7,  000  forfeiture  would  be  economically  crippling  to  station  operations.  CCI  did  not  provide  any  financial  documentation  to  support  that  claim. 
 Moreover,  after  the  NAL  was  released,  CCI  received  authorization  to  assign  the  license  for  KRXK(  AM)  to 
 Pacific  Empire  Holdings  Corp.  See  File  No.  BAL-  20000403ABH,  granted  July  25,  2000.  CCI  has  not 
 shown  that  it  would  be  unable  to  pay  the  forfeiture  from  the  proceeds  of  the  sale.  Moreover,  once  CCI 
 closes  on  the  sale,  the  forfeiture  will  no  longer  have  an  impact  upon  station  operations.  After  reviewing  all 
 of  the  factors  required  by  Section  503(  b)(  2)(  D)  of  the  Act,  we  believe  a  $7,000  forfeiture  is  appropriate  in 
 this  case. 


 IV.  ORDERING  CLAUSES 
 10.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  Section  503(  b)  of  the  Act,  47  U.  S.  C.    503(  b),  and  Sections  0.111,  0.311  and  1.80(  f)(  4)  of  the  Commission's  rules,  1  Communicast  Consultants, 


 Inc.  IS  LIABLE  FOR  A  MONETARY  FORFEITURE  in  the  amount  of  seven  thousand  dollars  ($  7,000), 
 for  its  willful  violation  of  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commission's  rules,  47  C.  F.  R.   
 73.3999. 


 11.  Payment  of  the  forfeiture  shall  be  made  in  the  manner  provided  for  in  Section  1.  80  of  the  Commissions  rules  within  30  days  of  the  release  of  this  Forfeiture  Order.  If  the  forfeiture  is  not  paid 


 within  the  period  specified,  the  case  may  be  referred  to  the  Department  of  Justice  for  collection  pursuant  to 
 Section  504(  a)  of  the  Act,  47  U.  S.  C.    504(  a).  Payment  may  be  made  by  mailing  a  check  or  similar 
 instrument,  payable  to  the  order  of  the  Federal  Communications  Commission,  to  the  Federal 
 Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482.  The  payment  should  note 
 the  NAL/  Acct.  No.  referenced  above.  Requests  for  full  payment  under  an  installment  plan  should  be  sent 
 to:  Chief,  Credit  and  Debt  Management  Center,  445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  See  47 
 C.  F.  R.    1.1914. 


 12.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  shall  be  sent,  by  Certified  Mail/  Return  Receipt  Requested,  to  Communicast  Consultants,  Inc.  341  West  1500  North,  Rexburg,  Idaho 
 83440. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon 
 Chief,  Enforcement  Bureau 


 1  47  C.  F.  R.    0.111,  0.311,  1.80(  f)(  4). 
3