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 __________________  Federal  Communications  Commission_____  DA  00-  951_____________ 
 1 
 Before  the 
 Federal  Communications  Commission  Washington,  D.  C.  20554 

 In  the  Matter  of  ) 
 ) 
 Three  Eagles  of  Columbus,  Inc.  )  Control  No.  99040101 
 )  NAL/  Acct.  No.  X32080013 
 Licensee  of  Station  KROR(  FM),  )  ID#  26649 
 Hastings,  Nebraska  )  ) 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  April  27,  2000  Released:  April  28,  2000 
 By  the  Chief,  Enforcement  Bureau 

 I.  Introduction 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture,  we  find  Three  Eagles  of 
 Columbus,  Inc.  (TEC),  licensee  of  Station  KROR(  FM),  Hastings,  NE,  apparently  liable  for 
 a  forfeiture  in  the  amount  of  seven  thousand  dollars  ($  7,000)  for  a  violation  of  18  U.  S.  C.   
 1464  and  Section  503(  b)(  1)(  D)  of  the  Communications  Act  of  1934,  as  amended,  (the 
 Act)  1  and  Section  73.3999  of  the  Commissions  rules,  47  C.  F.  R.    73.3999,  by 
 broadcasting  indecent  material. 

 II.  Background 
 2.  The  Commission  received  information  indicating  that  Station  KROR(  FM), 
 Hastings,  NE,  may  have  violated  18  U.  S.  C.    1464  by  broadcasting  allegedly  indecent 
 material  during  the  "Bob  and  Tom  Show"  on  February  26,  1999,  between  6  a.  m.  and 
 9:  45  a.  m.  A  transcript  of  those  portions  of  the  allegedly  indecent  broadcast  that  are  the 
 subject  of  this  action,  taken  from  a  tape  submitted  by  the  complainant,  is  attached.  By 
 letter  dated  October  27,  1999,  we  requested  TEC  to  comment  on  the  complaint.  TEC  filed 
 its  response  on  November  30,  1999. 

 III.  Discussion 
 3.  Section  503(  b)(  1)(  D)  of  the  Act  provides  in  pertinent  part: 
 Any  person  who  is  determined  by  the  Commission,  in  accordance  with  paragraph 
 (3)  or  (4)  of  this  subsection,  to  have---  violated  any  provision  of  section  1304,  1343, 

 1  18  U.  S.  C.    1464,  47  U.  S.  C.    503(  b)(  1)(  D). 
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 __________________  Federal  Communications  Commission_____  DA  00-  951_____________ 
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 or  1464  of  title  18,  United  States  Code;  shall  be  liable  to  the  United  States  for  a 
 forfeiture  penalty. 

 4.  Pursuant  to  47  U.  S.  C.    312(  a)(  6)  and  503(  b)(  1)(  D),  the  Commission  has 
 statutory  authority  to  take  appropriate  administrative  action  when  licensees  broadcast 
 material  in  violation  of  18  U.  S.  C.    1464,  which  provides  criminal  penalties  for  anyone 
 who  "utters  any  obscene,  indecent  or  profane  language  by  means  of  radio  communication." 

 5.  The  Commission  has  defined  indecency  as  language  or  material  that,  in  context, 
 depicts  or  describes,  in  terms  patently  offensive  as  measured  by  contemporary  community 
 standards  for  the  broadcast  medium,  sexual  or  excretory  activities  or  organs.  Infinity 
 Broadcasting  Corporation  of  Pennsylvania,  2  FCC  Rcd  2705  (1987)  (citing  Pacifica 
 Foundation,  56  FCC  2d  94,  98  (1975),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438 
 U.  S.  726  (1978).  The  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit 
 has  upheld  the  Commission's  authority  to  restrict  the  broadcast  of  indecent  material  at  times 
 when  there  is  a  reasonable  risk  that  children  may  be  in  the  audience.  Action  for  Childrens 
 Television  v.  FCC,  852  F.  2d  1332  (D.  C.  Cir.  1988).  The  court  subsequently  concluded  that 
 a  10:  00  p.  m.  to  6:  00  a.  m.  "safe  harbor"  was  justified  as  a  properly  tailored  means  of 
 vindicating  the  government's  compelling  interest  in  the  welfare  of  children.  Action  for 
 Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995),  cert.  denied,  116  S.  Ct.  701 
 (1996). 

 6.  TECs  response  to  our  October  27,  1999,  letter  of  inquiry  indicates  that  the 
 Bob  and  Tom  Show  is  a  syndicated  program  carried  by  station  KROR(  FM).  During 
 the  broadcast  of  the  program,  the  station  has  a  local  announcer  on  the  board  to  allow 
 for  editing  of  material  the  station  believes  to  be  indecent,  obscene  or  otherwise  offensive. 
 TEC  contends  the  cited  material  was  not  indecent  but  constituted,  in  the  major, 
 innuendo  or  double  entendre  which  at  the  worse  could  be  considered  to  be  in  bad  taste. 
 Moreover,  it  contends  that  the  broadcast  was  an  isolated  occurrence  during  a  four-  hour 
 program.  We  are  unpersuaded  by  TECs  arguments.  The  cited  language  dwells  at  length 
 on  sexual  innuendoes  and  cannot  be  considered  fleeting.  Moreover,  the  fact  that  this  is 
 only  one  segment  of  a  four-  hour  program  is  not  decisionally  significant.  We  find  that  the 
 material  relies  principally  on  innuendo  to  convey  a  sexual  meaning  which  is 
 unmistakable  and  therefore,  is  actionably  indecent.  Great  American  Television  and 
 Radio  Company,  Inc.  (WFBQ-  FM),  6  FCC  Rcd  3692  (MMB  1990). 

 7.  It  appears  that  the  subject  excerpts  are  indecent  in  that  they  contain  language  that 
 describes  sexual  and/  or  excretory  activities  or  organs  in  patently  offensive  terms.  Because 
 the  material  aired  between  6:  00  a.  m.  and  9:  45  a.  m.,  when  there  was  a  reasonable  risk  that 
 children  may  have  been  in  the  audience,  it  is  legally  actionable.  Thus,  it  appears  that  on 
 February  26,  1999,  Station  KROR-  FM,  violated  18  U.  S.  C.    1464  by  airing  indecent 
 programming. 

 8.  Section  503(  b)  of  the  Act  and  Section  1.80(  a)  of  the  Commissions  Rules  both 
 state  that  any  person  who  willfully  or  repeatedly  fails  to  comply  with  the  provisions  of 
 the  Act  or  the  rules  shall  be  liable  for  a  forfeiture  penalty.  For  purposes  of  Section  503(  b) 
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 of  the  Communications  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.  2 

 9.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of 
 $7,  000  for  transmission  of  indecent/  obscene  materials.  3  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,  4  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.  5  After  reviewing  all  of  the  circumstances,  we  believe  a  $7,  000  forfeiture 
 appears  to  be  appropriate  in  this  case. 

 IV.  Ordering  Clauses 
 10.  ACCORDINGLY,  IT  IS  ORDERED  pursuant  to  Section  503(  b)  of  the 
 Communications  Act  of  1934,  as  amended,  and  Sections  0.111,  0.311,  and  1.80  of  the 
 Commissions  rules,  6  that  Three  Eagles  of  Columbus,  Inc.  is  hereby  NOTIFIED  of  its 
 APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  seven  thousand  dollars 
 ($  7,000)  for  willfully  violating  Section  503(  b)(  1)(  D)  of  the  Communications  Act  of  1934, 
 as  amended,  and  Section  73.  3999  of  the  Commissions  rules. 

 11.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  1.  80  of  the  Commissions 
 Rules,  7  that  within  thirty  days  of  the  release  of  this  Notice,  TEC  SHALL  PAY  to  the 
 United  States  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
 statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 

 12.  Payment  of  the  forfeiture  may  be  made  by  credit  card  through  the 
 Commission's  Credit  and  Debt  Management  Center  at  (202)  418-  1995  or  by  mailing  a 
 check  or  similar  instrument,  payable  to  the  order  of  the  Federal  Communications 
 Commission,  to  the  Forfeiture  Collection  Section,  Finance  Branch,  Federal 
 Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482.  The 
 payment  should  note  the  NAL/  Acct.  No.  referenced  above. 

 13.  The  response,  if  any,  must  be  mailed  to  Charles  W.  Kelley,  Chief, 
 Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications 

 2  See  Southern  California  Broadcasting  Co.,  FCC  Rcd  4387  (1991). 

 3  The  Commissions  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Commissions  Rules, 
 12  FCC  Rcd  17087,  17113  (1997)  recon.  denied,  15  FCC  Rcd  303  (1999)  (Forfeiture  Policy  Statement). 

 4  12  Fcc  Rcd  .  at  17110. 

 5  47  U.  S.  C.    503(  b)(  2)(  D). 
 6  47  C.  F.  R.    0.  111,  0.311  and  1.  80. 
 7  47  C.  F.  R.    101.53. 
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 __________________  Federal  Communications  Commission_____  DA  00-  951_____________ 
 4 
 Commission,  445  12  th  Street,  S.  W,  Room  3-  B443,  Washington  DC  20554  and  MUST 
 INCLUDE  the  file  number  listed  above. 

 14.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  shall  be  sent,  by 
 Certified  Mail/  Return  Receipt  Requested,  to  Three  Eagles  of  Columbus,  Inc.  s  counsel, 
 Richard  F.  Swift,  Esq.,  Suite  350,  2175  K  Street,  N.  W.,  Washington,  D.  C.  20037. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 David  H.  Solomon 
 Chief,  Enforcement  Bureau 

 Attachment 
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 __________________  Federal  Communications  Commission_____  DA  00-  951_____________ 
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 Radio  Station:  KROR-  FM,  Hastings,  NE 
 Date/  Time  Broadcast:  February  26,  1999,  between  6  a.  m.  and  9:  45  a.  m. 
 Material  Broadcast:  Bob  and  Tom  Show 
 99040101 

 MV:  Male  Voice 
 M2:  Second  Male  Voice 
 M3:  Third  Male  Voice 
 FV:  Female  Voice 
 GS:  Girls  Singing 

 ** 
 MV:  Hi  Felicia,  gee,  I  love  your  dress  and  your  hair  looks  so  shiny  and  manageable,  are  you  still 
 shampooing  with  Head  and  Shoulders? 
 FV:  Gosh  Chick,  I  stopped  using  Head  and  Shoulders  a  long  time  ago.  I  mean  honestly,  who 
 grows  hair  on  their  shoulders  anyway? 
 MV:  Yeah,  right.  So  what  are  you  using  now? 
 FV:  Well,  it's  like  Head  and  Shoulders  only  without  all  those  additives.  It's  just  called  Head. 
 Let's  tell  them  about  it  girls. 
 GS:  If  you're  tired  of  old  shampoo  and  (Unintelligible)  and  feeling  blue,  yeah,  yeah,  just 
 remember  what  I  said,  yeah,  yeah,  you'll  feel  better  if  you  get  some  Head. 
 MV:  Wow.  Where  can  I  get  Head? 
 FV:  Lots  of  places  Chick,  you  can  stop  by  my  place  later  and  I'll  be  happy  to  give  you  some 
 Head.  (Laughter).  In  15  minutes  I'll  have  you  shampooed,  styled  and  blown  dry. 
 MV:  Gee,  you  don't  miss  a  lick  do  you?  Head  sounds  great  but  is  it  expensive? 
 FV:  Not  at  all  Chick,  my  brother  says  there  are  places  downtown  where  you  can  get  Head  for 
 less  than  10  dollars. 
 MV:  Golly,  at  that  price  everyone  should  be  getting  Head. 
 M2:  That's  right  Chick,  when  you  say  Head,  you've  said  a  mouthful.  Hi,  I'm  Dr.  Raymond  Fa-lot- 
 ee-  oh  from  Frig  Them  All  Industries  here  to  tell  you  why  you  should  get  Head.  First  it 
 lubricates  each  limp  hair  follicle  leaving  an  erect  glistening  shaft.  Then  the  scalp's  natural 
 oils  are  sucked  out  of  the  root,  leaving  your  hair  soft,  shiny  and  exhausted.  Nothing  does 
 the  job  like  Head. 
 M3:  Great,  can  I  get  Head  from  my  hairdresser  Bruce? 
 M2:  Probably,  but  you  might  want  to  try  your  girlfriend  first. 
 GS:  So  ask  and  get  some  Head  today,  yeah,  yeah,  little  squirt  goes  a  long,  long  way,  yeah,  yeah, 
 you'll  look  better  and  you'll  feel  terriff(?)  yeah,  yeah,  when  you  get  Head  you're  a  lucky 
 stiff. 
 MV:  Want  hair  with  lots  of  volume,  nothing  gets  it  up  like  Head.  Available  at  a  price  you  won't 
 find  hard  to  swallow.  And  it's  going  down  every  day. 
 FV:  Honey,  we're  out  of  shampoo,  can  you  go  out  and  get  some  Head? 
 MV:  What  did  you  say? 
 FV:  I  said,  I  want  you  to  go  out  and  get  Head. 
 MV:  Oh  thank  you  sweet  Jesus.  I'm  going  downtown. 
 M2:  And  Head  makes  a  great  holiday  gift.  Last  Christmas  my  wife  gave  me  some  Head.  Then  I 
 gave  her  a  pearl  necklace.  I've  never  seen  her  so  choked  up. 
 M3:  My  girlfriend  used  to  give  me  Head,  then  we  got  married.  Now  I'm  lucky  if  I  get  Jergen's 
 lotion  and  a  National  Geographic.  (Laughter). 
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 __________________  Federal  Communications  Commission_____  DA  00-  951_____________ 
 6 
 GS:  Once  you  start  you  won't  want  to  stop,  Head  feels  so  good  you  might  blow  your  top,  give 
 Head  in  the  shower  you'll  want  to  come,  give  Head.  Mm  mm  mm  mm.  If  you're  tired  of 
 your  old  shampoo,  yeah,  yeah,  frustrated  and  feeling  blue,  yeah,  yeah,  just  remember  what 
 I  said,  yeah,  yeah,  you'll  feel  better  if  you  get  some  Head,  you'll  feel  better  if  you  get  some 
 Head. 
 MV:  Oh  yeah,  oh,  oh.  Head  Shampoo,  come  on  give  it  a  shot. 
 M2:  My  hair  looks  great.  (Laughter).  Use  a  nap. 
 MV:  A  little  Head  shampoo  for  you. 
 M2:  By  request  here  on  the  Bob  and  Tom  program. 

 ** 
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