*Pages 1--15 from  Microsoft Word - 36885*
 Federal  Communications  Commission  FCC  04-  36 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 CAPSTAR  TX  LIMITED  PARTNERSHIP 
 Licensee  of  Station  WAVW(  FM) 
 (Formerly  WZZR(  FM))  Stuart,  Florida 

 and 
 Station  WCZR(  FM)  Vero  Beach,  Florida 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 ) 

 File  No.  EB-  02-  IH-  0564-  AHB  NAL/  Acct.  No.  200432080012 
 FRN  No.  0003474947  Facility  ID  No.  14376 

 Facility  ID  No.  41066 
 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  February  20,  2004  Released:  March  18,  2004 
 By  the  Commission:  Commissioners  Martin  and  Adelstein  issuing  separate  statements;  Commissioner  Copps  dissenting  and  issuing  a  statement. 

 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  grant  a  complaint,  2  and  find  that  Capstar  TX  Limited  Partnership  (  Capstar),  licensee  of  Stations  WAVW(  FM),  3  Stuart,  Florida,  and  WCZR(  FM)  Vero  Beach, 
 Florida,  apparently  violated  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.3999,  by  willfully  and  repeatedly  airing  indecent  material  over  the  stations  on  May  31,  2002.  Based  upon  our  review  of 
 the  facts  and  circumstances  in  this  case,  we  conclude  that  Capstar  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  Fifty-  Five  Thousand  Dollars  ($  55,000.00). 

 II.  BACKGROUND 
 2.  The  Commission  received  a  complaint  alleging  that  Station  WZZR(  FM)  aired  indecent  material  at  7:  15  a.  m.  on  May  31,  2002.  4  The  complainant  included  a  detailed 

 1  47  U.  S.  C.    503(  b)  (2002);  47  C.  F.  R.    1.80  (2002). 
 2  See  Letter  dated  June  1,  2002,  to  Federal  Communications  Commission  (  Complaint  Letter). 
 3  On  January  1,  2003,  WZZR(  FM)  changed  its  call  sign  to  WAVW(  FM). 
 4  See  Complaint  Letter. 
1
 Federal  Communications  Commission  FCC  04-  36 
 2 
 description  of  broadcast  material  that  the  complainant  believed  depicted  an  actual  or  apparent  sex  act  between  a  man  and  woman.  5  Because  the  complaint  contained  potentially  indecent  material 
 that  aired  between  6  a.  m.  and  10  p.  m.,  Enforcement  Bureau  (  Bureau)  staff  issued  a  letter  of  inquiry  to  the  licensee.  6  In  its  response  to  the  staffs  inquiry,  Clear  Channel  Communications, 
 Inc.  (  Clear  Channel),  the  indirect  parent  of  Capstar,  states  that  it  has  neither  a  tape  nor  a  transcript  and  cannot  determine  whether  the  alleged  material  actually  aired.  7  Nevertheless,  Clear 
 Channel  does  not  deny  that  the  material  aired  as  stated  in  the  complaint,  and  maintains  instead  that,  even  if  it  aired  the  material  in  question,  it  was  not  actionably  indecent.  8  Specifically,  Clear 
 Channel  states  that  the  material  consisted  mainly  of  sounds  of  a  woman  moaning  which  was  not  patently  offensive  because  the  context  of  the  sounds  was  unclear  and  because  any  direct 
 references  to  sex  were  isolated  and  brief  and  not  lengthy,  repetitive  or  explicit.  9  On  August  19,  2003,  the  staff  sent  a  supplemental  letter  of  inquiry  to  Clear  Channel,  to  which  Clear  Channel 
 responded  on  September  3,  2003,  indicating  that  the  broadcast  material  at  issue  was  also  simulcast  on  Station  WCZR(  FM),  Vero  Beach,  Florida,  on  the  date  and  at  the  time  alleged  in  the 
 complaint.  10 
 III.  DISCUSSION 
 3.  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.  11  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.  12  In  addition,  section 
 73.3999  of  the  Commissions  rules  provides  that  radio  and  television  stations  shall  not  broadcast 

 5  Id. 
 6  See  Letter  dated  July  22,  2002,  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division, 
 Enforcement  Bureau,  Federal  Communications  Commission,  to  Capstar. 
 7  See  Letter  dated  August  21,  2002,  from  Kenneth  E.  Wyker,  Senior  Vice  President  and  General  Counsel 
 for  Clear  Channel,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission  (  Clear  Channel  Response  to  Inquiry  I). 

 8  See  id. 
 9  Id.  at  2-  4. 
 10  See  Letter  dated  September  3,  2003,  from  Richard  W.  Wolf,  Vice  President  for  Clear  Channel,  to 
 Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission  (  Clear  Channel  Response  to  Inquiry  II). 

 11  See  47  U.  S.  C.    326. 
 12  18  U.  S.  C.    1464. 
2
 Federal  Communications  Commission  FCC  04-  36 
 3 
 obscene  material  at  any  time,  and,  consistent  with  a  subsequent  statute  and  court  decision,  13  shall  not  broadcast  indecent  material  during  the  period  6  a.  m.  through  10  p.  m.  14 
 4.  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.  15  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.  16  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.  17  As  we  set  forth  in 
 greater  detail  below,  we  conclude  under  this  standard  that  Capstar  is  apparently  liable  for  a  forfeiture  for  its  apparent  willful  and  repeated  violations  of  18  U.  S.  C.    1464  and  section  73.3999 
 of  the  Commissions  rules. 
 A.  Indecency  Analysis 
 5.  Any  consideration  of  government  action  against  allegedly  indecent  programming  must  take  into  account  the  fact  that  such  speech  is  protected  under  the  First  Amendment.  18  The 
 federal  courts  consistently  have  upheld  Congresss  authority  to  regulate  the  broadcast  of  indecent 

 13  Public  Telecommunications  Act  of  1992,  Pub.  L.  No.  102-  356,  106  Stat.  949  (1992)  (setting  the  current 
 safe  harbor  of  10  p.  m.  to  6  a.  m.  for  the  broadcast  of  indecent  material);  see  also  Action  for  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995)  (en  banc),  cert.  denied,  516  U.  S.  1072  (1996)  (  ACT 

 III)  (affirming  restrictions  prohibiting  the  transmission  of  indecent  material  between  the  hours  of  6  a.  m.  and  10  p.  m.). 

 14  See  47  C.  F.  R.    73.  3999. 
 15  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  14  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. 
 16  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f). 

 17  See,  e.  g.,  SBC  Communications,  Inc.,  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd 
 7589,  7591,    4  (2002)  (forfeiture  paid). 
 18  U.  S.  CONST.,  amend.  I;  See  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir. 
 1988)  (  ACT  I). 
3
 Federal  Communications  Commission  FCC  04-  36 
 4 
 material,  as  well  the  Commissions  interpretation  and  implementation  of  the  governing  statute.  19  Nevertheless,  the  First  Amendment  is  a  critical  constitutional  limitation  that  demands  that,  in 
 indecency  determinations,  we  proceed  cautiously  and  with  appropriate  restraint.  20 
 6.  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.  21 
 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.  22 

 7.  As  an  initial  matter,  Clear  Channel  does  not  dispute  that  it  aired  material  describing  or  depicting  sexual  and  excretory  activities  and  organs.  23  That  material,  therefore, 
 warrants  further  scrutiny  to  determine  whether  or  not  it  was  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  24 

 8.  In  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  25  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 

 19  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);  ACT  III,  58  F.  3d  at  657. 
 20  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.).  See  id.  at  1340  n.  14  (  .  .  .  the  potential 

 chilling  effect  of  the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy.). 

 21  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)). 

 22  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    7-  8  (emphasis  in  original). 
 23  See  Clear  Channel  Response  to  Inquiry  I  at  1. 
 24  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  16  FCC  Rcd  at  8002,    8  and  n.  15. 

 25  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    9  (emphasis  in  original). 
4
 Federal  Communications  Commission  FCC  04-  36 
 5 
 activities;  and  (3)  whether  the  material  appears  to  pander  or  is  used  to  titillate  or  shock.  26  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.  27  In  particular  cases,  the  weight  of  one  or 
 two  of  the  factors  may  outweigh  the  others,  either  rendering  the  broadcast  material  patently  offensive  and  consequently  indecent,  28  or,  alternatively,  removing  the  broadcast  material  from  the 
 realm  of  indecency.  29  We  turn  now  to  our  analysis  of  the  three  principal  factors  in  our  decision. 
 9.  First,  the  comments  and  dialogue  carried  on  by  the  program  hosts  during  the  broadcasts  contained  graphic  and  explicit  references  to  sexual  activities,  including  repeated 

 discussion  and  depiction  of  oral  sex.  The  May  31  broadcast  contains  a  dialogue  between  the  hosts  and  a  man  and  woman,  purportedly  husband  and  wife,  just  prior  to,  during  and  after  an  act 
 of  actual  or  simulated  sexual  intercourse.  30  Specifically,  the  complainant  states  that  she  heard  sounds  like  someone  was  eating  which  are  referenced  later  in  the  conversation  as  the  woman 
 having  had  a  mouthful  prior  to  the  beginning  of  the  actual  or  simulated  sex  act,  both  comprising  clear  references  to  oral  sex.  31  In  addition  to  these  references  and  consistent  with  that 
 tone,  the  broadcast  features  the  sounds  of  a  woman  moaning  which  figure  prominently  throughout  the  segment.  32  There  are  other  graphic  references  to  oral  sex,  for  example: 

 Then  the  DJ  said  to  [the  female  participant]  I  think  you  like  giving  oral  as  much  as  you  like  being  on  the  receiving  end, 
 right?    She  said  yes.    .  .  .  She  asked  if  she  could  bring  some  pictures  of  herself  down  to  the  station.  The  DJ  said  yes  and 
 when  you  come  down  you  can  give  me  some  oral  to  which  she  replied  yes  and  the  DJ  said  Ill  bet  your  husband  is 
 saying  no  right  now.    33 
 To  the  extent  that  the  sound  effects  or  colloquial  terms  that  the  program  hosts  used  to  describe  sexual  activities  could  be  described  as  innuendo  rather  than  as  direct  references,  they  are 
 nonetheless  sufficient  to  render  the  material  actionably  indecent  because  the  sexual  import  of 

 26  Id.  at  8002-  15,    8-  23. 
 27  Id.  at  8003,    10. 
 28  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). 
 29  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). 

 30  See  Complaint  Letter. 
 31  Id. 
 32  Id. 
 33  Id. 
5
 Federal  Communications  Commission  FCC  04-  36 
 6 
 those  sounds  and  terms  was  unmistakable.  34  Given  the  explicit  references  and  the  graphic  manner  in  which  the  broadcasts  described  the  activities  of  the  subjects  engaging  in  the  purported 
 sex  acts,  there  is  no  non-  sexual  meaning  that  a  listener  could  possibly  have  attributed  to  these  terms.  35  Therefore,  we  find  that  the  broadcast  at  issue  described  sexual  activities  through  the 
 use  of  direct  references,  simulation,  and/  or  innuendo  that  were  sufficiently  explicit  or  graphic  to  be  deemed  patently  offensive  as  measured  by  contemporary  community  standards  for  the 
 broadcast  medium. 
 10.  Second,  the  program  hosts,  in  their  dialogue  with  each  other  and  the  callers,  continuously  focused  on  the  sexual  activities  of  the  two  subjects  in  graphic  detail.  The  sexual 
 discussion  and  references  were  not  fleeting  or  isolated.  Rather,  discussions  about  and  references  to  sexual  activity  pervaded,  and  were  the  subject  of  the  May  31,  2002,  broadcast.  Thus,  the 
 sexual  discussions  and  references  were  dwelled  upon  and  repeated  and  constitute  patently  offensive  material  as  measured  by  contemporary  standards  for  the  broadcast  medium. 

 11.  Finally,  and  perhaps  most  significantly,  several  characteristics  of  the  manner  in  which  the  station  presented  this  material  establish  that  Capstar  broadcast  this  material  to  pander 
 to,  titillate  and  shock  listeners.  The  program  hosts  continued  and  repeated  references  to  the  couples  sexual  activities  and  comments  about  their  specific  sexual  practices  clearly  evince  the 
 pandering  nature  and  shock  value  of  the  material  with  regard  to  the  listening  audience.  For  example,  one  of  the  hosts  asked  the  woman  if  she  and  her  husband  were  both  naked  and  whether 
 they  were  ready.  36  The  hosts  also  asked  the  woman  if  she  had  climaxed  and  whether  she  and  her  husband  were  planning  on  having  sex  again.  37  The  hosts  conclude  the  program  by  stating 
 we  have  been  listening  to  Zoe  and  her  husband  having  sex.  38  During  the  broadcast,  the  program  hosts  geared  their  questions  to  the  subjects  to  elicit  specific  information  from  them 
 regarding  their  sexual  practices,  focusing  on  the  topic  of  oral  sex  in  particular.  39  By  goading  the  couple  into  discussing  their  sexual  activities  in  a  pandering  and  offensive  manner,  the  program 
 hosts  set  out  to  pander  and  to  shock  listeners.  In  this  regard,  the  program  hosts  broadcast  of  eating  sounds  when  referring  to  oral  sex  and  loud  moaning  sounds  during  other  sexual  activities 
 demonstrates  that,  in  context,  this  program  was  not  a  clinical  discussion  of  a  married  couples  sexual  behavior.  Further,  the  broadcast  occurred  at  or  about  7  a.  m.,  when  there  was  a  reasonable 
 risk  that  children,  whom  the  government  has  a  recognized  and  compelling  interest  to  shield  from  indecent  material,  40  would  be  in  the  audience,  on  their  way  to  or  getting  ready  for  school.  For 
 these  reasons,  we  find  that  the  May  31,  2002,  broadcast  was  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium. 

 34  See  Indecency  Policy  Statement,  16  FCC  Rcd  at  8003-  04,    12;  see  also  Telemundo  of  Puerto  Rico 
 License  Corp.  (WKAQ-  TV),  16  FCC  Rcd  7157  (EB  2001)  (forfeiture  paid);  Citcasters  Co.  (KEGL(  FM),  15  FCC  Rcd  19091  (EB  2000)  (forfeiture  paid). 

 35  See  Sagittarius  Broadcast  Corporation,  7  FCC  Rcd  6873,  6874  (1972)  (subsequent  history  omitted). 
 36  See  Complaint  Letter. 
 37  Id. 
 38  Id. 
 39  See  id. 
 40  See  ACT  III,  58  F.  3d  at  660-  63. 
6
 Federal  Communications  Commission  FCC  04-  36 
 7 
 12.  We  disagree  with  Clear  Channels  contention  that  the  language  used  was  not  patently  offensive  or  actionably  indecent  because  the  context  in  which  the  language  appears  is  not 
 readily  apparent.  41  The  material  includes  unmistakable  references  to  sexual  activity,  including  sexual  intercourse  and  oral  sex.  In  a  similar  situation,  we  found  the  broadcast  of  graphic 
 descriptions  of  sexual  and  excretory  activities  between  couples  to  be  indecent.  42  Likewise,  the  staff  determined  that  the  interview  of  an  adult-  film  actress  who  crudely  relayed  her  fondness  for 
 oral  sex  was  indecent.  43  We  believe  a  similar  result  is  warranted  here.  44 
 13.  In  sum,  by  broadcasting  this  material  on  May  31,  2002,  within  the  6  a.  m.  to  10  p.  m.  time  period  relevant  to  an  indecency  determination  under  section  73.3999  of  the 
 Commissions  rules,  Capstar  apparently  violated  18  U.  S.  C.    1464  and  the  Commissions  rule  against  broadcast  indecency. 

 B.  Proposed  Forfeiture 
 14.  Based  upon  our  review  of  the  record  in  this  case,  we  conclude  that  Capstar  is  apparently  liable  for  a  forfeiture  for  two  willful  and  repeated  violations  of  our  rules  for 
 broadcasting  indecent  material  over  two  stations.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000.00  for  transmission  of  indecent  materials.  45  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.  46  In  this  case,  taking  all  of  these  factors  into  consideration,  we  find  that  Capstar  is  apparently  liable  for  a  forfeiture  reflecting  the  proposed 
 imposition  of  the  statutory  maximum  of  $27,500  for  each  broadcast  of  apparently  indecent  material  over  two  stations,  WZZR(  FM)  and  WCZR(  FM)  (2  x  $27,500.00).  Based  upon  our 
 review  of  the  entire  record,  we  believe  that  this  upward  adjustment  to  the  statutory  maximum  is  warranted.  There  is  a  recent  history  of  indecent  broadcasts  on  stations  controlled  by  Clear 
 Channel,  Capstars  corporate  parent,  which  justifies  imposition  of  the  maximum  forfeiture 

 41  See  Clear  Channel  Response  to  Inquiry  I  at  3.  Clear  Channel  also  alleges  that,  because  the  sexual  context 
 is  not  apparent,  the  sound  of  a  woman  moaning,  by  itself,  does  not  meet  the  Commissions  indecency  standard.  Id. 

 42  See  Rusk  Corporation  (KLOL(  FM)),  Notice  of  Apparent  Liability  for  Forfeiture,  5  FCC  Rcd  6332  (MMB 
 1990)  (  Rusk  Corporation)  (graphic  descriptions  that  focused  on  sexual  and  excretory  activities  in  a  lewd,  vulgar,  pandering  and  titillating  manner  broadcast  between  6:  00  a.  m.  and  10  p.  m.  constituted 

 violation  of  the  Commissions  restrictions  on  the  broadcast  of  indecent  materials). 
 43  See  Regent  Licensee  of  Flagstaff,  Inc.  (KZGL  (FM)),  Notice  of  Apparent  Liability  for  Forfeiture,  15  FCC 
 Rcd  17286  (EB  2000).  See  also  Rusk  Corporation,  5  FCC  Rcd  6332. 
 44  See  Rusk  Corporation,  5  FCC  Rcd  at  6332. 

 45  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). 

 46  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17100-  01,    27. 
7
 Federal  Communications  Commission  FCC  04-  36 
 8 
 amount.  47  We  reiterate  our  recent  statement  that  multiple  serious  violations  of  our  indecency  rule  by  broadcasters  may  well  lead  to  license  revocation  proceedings.  48  We  also  remind  broadcasters 
 that  separate  utterances  within  a  single  broadcast  may  be  considered  separate  violations  for  purposes  of  determining  forfeitures  under  our  indecency  rules.  49 

 IV.  ORDERING  CLAUSES 
 15.  ACCORDINGLY,  IT  IS  ORDERED,  pursuant  to  section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  and  section  1.80  of  the  Commissions  rules,  50  that 
 Capstar  TX  Limited  Partnership  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  Fifty-  Five  Thousand  Dollars  ($  55,000.00)  for  willfully  and 
 repeatedly  violating  18  U.  S.  C.    1464  and  section  73.  3999  of  the  Commissions  rules.  51 
 16.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  Notice,  Capstar  TX  Limited  Partnership 
 SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 

 17.  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. 
 18.  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  Capstar  TX  Limited  Partnership  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 
 Capstar  TX  Limited  Partnership,  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  A  of  this  Notice  of  Apparent  Liability.  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 
 47  AMFM  Radio  Licenses,  LLC  (WWDC(  FM)),  FCC  03-  233  (Oct.  2,  2003)  (forfeiture  paid);  Citicasters  Co. 
 (KEGL(  FM)),  16  FCC  Rcd  7546  (EB  2001)  (forfeiture  paid);  Citicasters  Co.  (WXTB(  FM)),  15  RCC  Rcd  25,  453  (2000)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  15  FCC  Rcd  19,  095  (EB  2000)  (forfeiture 

 paid);  Citicasters  Co.  (KSJO(  FM)),  15  FCC  Rcd  19091  (EB  2000)  (forfeiture  paid);  Citicasters  Co.  (WXTB(  FM)),  15  FCC  Rcd  11,  906  (2000)  (forfeiture  paid). 

 48  See  Infinity  Broadcasting  NAL(  WKRK-  FM),  18  FCC  Rcd  6915,  6919,    13  (2003);  Forfeiture  Order, 
 FCC  03-  302,  rel.  Dec.  8,  2003;  see  also  AMFM  FM  Radio  Licenses  LLC  (WWDC(  FM)),  2003  WL  22251146  (2003)  (forfeiture  paid)  (  Infinity  Broadcasting  NAL).  We  note  that  the  misconduct  at  issue 

 here  before  us  occurred  prior  to  our  warning  regarding  possible  revocation  proceedings. 
 49  See  Infinity  Broadcasting  NAL,  18  FCC  Rcd  at  6919,    13. 
 50  47  C.  F.  R.    1.80. 

 51  The  amount  is  allocated  on  a  basis  of  $27,  500.  00  per  station. 
8
 Federal  Communications  Commission  FCC  04-  36 
 9 
 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. 
 19.  The  response,  if  any,  must  be  mailed  to  William  Davenport,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  445  12th 
 Street,  S.  W,  Room  3-  B443,  Washington  D.  C.  20554  and  MUST  INCLUDE  the  NAL/  Acct.  No.  referenced  above. 

 20.  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. 

 21.  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.  52 
 22.  Accordingly,  IT  IS  ORDERED,  that  the  complaint  filed  against  Station  WAVW(  FM)  s  broadcast  of  May  31,  2002,  IS  GRANTED,  and  the  complaint  proceeding  IS 
 HEREBY  TERMINATED.  53 
 23.  IT  IS  FURTHER  ORDERED,  that  a  copy  of  this  Notice  of  Apparent  Liability  For  Forfeiture  shall  be  sent  by  Certified  Mail,  Return  Receipt  Requested,  to  Richard  W.  Wolf, 
 Vice  President,  Clear  Channel  Communications  Inc.,  2625  S.  Memorial  Drive,  Suite  A,  Tulsa,  Oklahoma  74129;  and  to  counsel  for  Clear  Channel  and  Capstar,  Eve  J.  Klindera,  Esquire,  Wiley 
 Rein  and  Fielding,  LLP,  1776  K  Street,  N.  W.,  Washington,  D.  C.  20006. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Marlene  H.  Dortch  Secretary 

 52  See  47  C.  F.  R.    1.1914. 
 53  Consistent  with  section  503(  b)  of  the  Act  and  with  Commission  practice,  for  the  purposes  of  the 
 forfeiture  proceeding  initiated  by  this  NAL,  Capstar  shall  be  the  only  party  to  this  proceeding. 
9
 Federal  Communications  Commission  FCC  04-  36 
 10 
 ATTACHMENT  A 
 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. 
10
 Federal  Communications  Commission  FCC  04-  36 
 11 
 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 
11
 Federal  Communications  Commission  FCC  04-  36 
 12 
 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 
12
 Federal  Communications  Commission  FCC  04-  36 
 13 
 DISSENTING  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS, 
 Re:  Capstar  TX  Limited  Partnership,  licensee  of  Stations  WAVW(  FM)(  formerly  WZZR(  FM)),  Stuart,  Florida,  and  WCZR(  FM),  Vero  Beach,  Florida,  Notice  of  Apparent 
 Liability  for  Forfeiture 
 In  this  case,  two  Clear  Channel  radio  stations  aired  what  was  purportedly  a  couple  engaging  in  sex  and  then  discussed  sexual  activities  with  them.  Clear  Channel  has  been  the 
 subject  of  repeated  indecency  actions  at  the  FCC,  accounting  for  well  over  half  the  indecency  fines  since  2000.  Yet,  notwithstanding  the  repeated  nature  of  Clear  Channels  transgressions,  the 
 majority  proposes  a  mere  $27,500  fine  for  each  incident  --  a  cost  of  doing  business  to  a  media  giant  like  Clear  Channel. 

 For  repeat  offenders  as  in  this  case,  I  believe  the  Commission  should  have  designated  these  cases  for  license  revocation  hearings.  As  I  recognized  in  a  prior  case,  Clear  Channel  has 
 taken  some  steps  in  recent  days  to  address  indecency  on  its  stations.  A  hearing  would  have  provided  the  Commission  with  the  ability  to  consider  what  actions  the  stations  took  in  response  to 
 these  broadcasts  and  to  decide  on  the  appropriate  penalty. 
 I  am  discouraged  that  my  colleagues  would  not  join  me  in  taking  a  firm  stand  here  against  indecency  on  the  airwaves.  The  time  has  come  for  the  Commission  to  send  a  strong 
 message  that  it  is  serious  about  enforcing  the  indecency  laws  of  our  country. 
 Although  I  do  not  support  this  decision,  I  am  pleased  that  the  Commission  is  proceeding  in  this  case  without  a  tape  or  transcript.  The  complainant  provided  us  with  a  description  of  what 
 was  heard  on  the  radio.  The  Commission  has  decided  that  this  description  was  sufficient  for  us  to  find  that  the  licensee  broadcast  indecency.  I  hope  the  Commission  will  expressly  and  publicly 
 overturn  its  general  policy  that  a  complainant  must  provide  a  tape,  transcript,  or  significant  excerpt  of  the  programming  at  issue  to  support  an  indecency  complaint.  I  have  long  expressed 
 the  view  that  this  practice  places  an  inordinate  responsibility  on  the  complaining  citizen  and  that  it  is  the  Commissions  responsibility  to  investigate  complaints  that  the  law  has  been  violated,  not 
 the  citizens  responsibility  to  prove  the  violations. 
13
 Federal  Communications  Commission  FCC  04-  36 
 14 
 STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 Re:  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WAVW(  FM),  Stuart  FL,  and  Station  WCZR(  FM),  Vero  Beach,  FL,  Notice  of  Apparent  Liability  For  Forfeiture 
 I  support  this  Notice  finding  that  the  two  licensees  at  issue  apparently  violated  our  indecency  rule.  I  write  separately  to  emphasize  that  the  complainant  had  no  tape  or  transcript,  but 
 did  provide  us  with  a  description  of  what  she  heard  on  the  radio.  I  am  pleased  that  the  Commission  has  unanimously  decided  that  this  description  was  sufficient  for  us  to  find  that  the 
 licensee  broadcast  indecency.  Complaints  should  no  longer  be  denied  because  of  a  lack  of  tape,  transcript,  or  significant  excerpt. 
14
 Federal  Communications  Commission  FCC  04-  36 
 15 
 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WAVW(  FM)(  formerly  WZZR(  FM)),  Stuart,  Florida,  and  Station  WCZR(  FM),  Vero  Beach,  Florida; 
 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.  Once  again,  we  impose  statutory  maximum  fines  and  remind  broadcasters 
 that  the  Commission  can  and  will  avail  itself  of  a  range  of  enforcement  sanctions.  While  I  am  pleased  that  today  we  affirmatively  find  that  a  tape  or  transcript  is  not  necessary,  I 
 also  remind  complainants  to  provide  a  sufficient  description  on  which  we  can  understand  the  full  context  in  which  the  material  was  broadcast.  And  I  urge  broadcasters  to  assist  the 
 Commission  fully  with  its  investigations. 
 Since  I  arrived  at  the  Commission,  we  have  greatly  stepped  up  our  enforcement  against  indecent  broadcasts.  I  expect  that  these  stepped-  up  actions  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. 
15