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 ____________  Federal  Communications  Commission  FCC  04-  17 
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 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of  )  File  No.  EB-  02-  IH-  0261  )  NAL  Acct.  No.  2004  3208  0011 
 CLEAR  CHANNEL  BROADCASTING  )  FRN  #  0001587971  LICENSES,  INC.  ) 
 )  Licensee  of  Stations  ) 
 WPLA(  FM),  Callahan,  Florida  )  Facility  ID  #  51975  WCKT(  FM),  Port  Charlotte,  Florida  ) 
 (Formerly  Station  WRLR(  FM))  )  Facility  ID  #  35213  ) 
 CITICASTERS  LICENSES,  L.  P.  )  FRN  #  0003017423  ) 
 Licensee  of  Station  )  WXTB(  FM),  Clearwater,  Florida  )  Facility  ID  #  11274 
 )  CAPSTAR  TX  LIMITED  PARTNERSHIP  )  FRN  #  0003474947 
 )  Licensee  of  Station  ) 
 WRLX(  FM),  West  Palm  Beach,  Florida  )  Facility  ID  #  20442 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  January  26,  2004  Released:  January  27,  2004 
 By  the  Commission:  Chairman  Powell,  Commissioners  Martin  and  Adelstein  issuing  separate  statements;  Commissioner  Copps  dissenting  and  issuing  a  separate  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  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  indecent  material  over  the  captioned  stations  during  the  July  19,  November  14,  19,  26  and  27  and  December  27,  2001,  broadcasts  of 
 the  Bubba  the  Love  Sponge  program.  Furthermore,  we  find  that  they  each  appear  to  have  failed  to  maintain  copies  of  certain  required  documents  in  the  public  inspection  files  of  each  of 
 their  respective  captioned  stations,  in  apparent  willful  violation  of  Section  73.3526(  e)(  10)  of  the  Commissions  rules.  2  Based  on  the  totality  of  the  evidence  before  us  and  Clear  Channels  history 
 of  transgressions  relating  to  the  broadcast  of  indecent  material  over  stations  licensed  to  its 
 1  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80. 
 2  47  C.  F.  R.    73.  3526(  e)(  10). 
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 subsidiaries,  we  conclude  that  Clear  Channel  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  Seven  Hundred  Fifty-  Five  Thousand  Dollars  ($  755,000),  the  statutory  maximum  of 
 $27,500  each  for  26  indecency  violations  ($  715,000),  and  the  base  amount  of  $10,000  each  for  four  public  file  violations  ($  40,000). 

 II.  BACKGROUND 
 2.  This  proceeding  arises  out  of  a  series  of  formal  complaints  filed  on  behalf  of  Douglas  Vanderlaan  against  Clear  Channel  alleging:  (1)  indecency  violations;  (2)  public 
 inspection  file  violations;  (3)  improper  intimidation  by  Clear  Channel  against  the  complainant;  and  (4)  the  promotion  and  glorification  of  the  use  of  illegal  drugs  in  Clear  Channels  broadcasts 
 and  on  its  web  site.  3  The  Enforcement  Bureau  (the  Bureau)  issued  a  series  of  letters  of  inquiry  4  and  the  record  includes  responses  by  Clear  Channel  5  and  by  the  complainant,  to  Clear 
 Channels  responses.  6 
 III.  DISCUSSION 
 A.  Indecency  Analysis 
 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 

 3  Complaint  of  Douglas  Vanderlaan,  dated  April  3,  2002  (  First  Complaint);  Second  Complaint  of  Douglas 
 Vanderlaan,  dated  October  10,  2002  (  Second  Complaint);  Third  Complaint  and  Supplement  of  Douglas  Vanderlaan,  dated  January  27,  2003  (  Third  Complaint). 

 4  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  to  Clear 
 Channel  Broadcasting  Licenses,  Inc.  and  Citicasters  Licenses,  L.  P.,  dated  July  5,  2002  (  Initial  LOI);  Letters  from  Maureen  F.  Del  Duca,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  to  Clear 

 Channel  Broadcasting  Licenses,  Inc.,  Citicasters  Licenses,  L.  P.,  Capstar  TX  Limited  Partnership  and  Kenneth  E.  Wyker,  Senior  Vice  President  &  General  Counsel,  Clear  Channel  Communications,  Inc.,  dated  August  18, 
 2003  (  Second  LOI  and  Third  LOI). 
 5  Letter  from  John  M.  Burgett,  Esq.,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission, 
 dated  July  15,  2002;  Letter  from  Kenneth  W.  Wyker,  Senior  Vice  President  &  General  Counsel,  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission, 

 dated  August  1,  2002  (  Initial  LOI  Response);  Letter  from  Kenneth  W.  Wyker,  Senior  Vice  President  &  General  Counsel,  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  Federal 
 Communications  Commission,  dated  August  28,  2002  (  Supplement  to  Initial  LOI  Response);  Letter  from  Richard  W.  Wolf,  Vice  President,  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary, 
 Federal  Communications  Commission,  dated  September  16,  2003  (  Second  LOI  Response);  Letter  from  Richard  W.  Wolf,  Vice  President,  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary, 
 Federal  Communications  Commission,  dated  September  16,  2003  (  Third  LOI  Response);  Letter  from  John  M.  Burgett,  Esq.,  to  Judy  Lancaster,  Esq.,  Investigations  and  Hearings  Division,  Enforcement  Bureau 

 6  Letter  from  Arthur  V.  Belendiuk,  Esq.,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications 
 Commission,  dated  August  13,  2002  (  First  Vanderlaan  Reply);  Letter  from  Douglas  G.  Vanderlaan  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission,  dated  September  24,  2003.  (  Second 

 Vanderlaan  Reply) 
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 interfering  with  broadcasters  freedom  of  expression.  7  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.  8  In  addition,  consistent  with  a  subsequent  statute  and  court  case,  9  Section  73.3999  of  the  Commissions  rules  provides  that  radio  and 
 television  stations  shall  not  broadcast  indecent  material  during  the  period  6  a.  m.  through  10  p.  m. 
 4.  As  an  initial  matter,  we  find  that  all  of  the  seven  segments  at  issue  in  this  NAL  were  broadcast  during  this  prohibited  time  period,  at  the  time  of  day  and  on  the  specific  dates  alleged  by 
 Mr.  Vanderlaan  in  his  First  Complaint,  10  albeit  not  by  all  four  of  the  captioned  stations.  In  this  regard,  Clear  Channel  has  acknowledged  that  segments  1,  2  and  7  were  indeed  broadcast,  and  that 
 the  transcripts  for  these  segments  submitted  by  Mr.  Vanderlaan  are  accurate.  11  Clear  Channel  states  that  it  did  not  retain  audio  recordings  or  transcripts  of  its  own  for  the  broadcasts  encompassed  by 
 the  remaining  three  segments,  segments  3,  4,  5  and  6.  Consequently,  as  to  those  segments,  Clear  Channel  refuses  to  admit  or  acknowledge  that  the  material  in  the  transcripts  provided  by  Mr. 
 Vanderlaan  aired  as  he  alleges.  12  However,  based  upon  the  evidence  before  us,  including  Clear  Channels  failure  to  refute  adequately  Mr.  Vanderlaans  allegations,  we  find  that  Segments  3,  4,  5 
 and  6  were  also  broadcast  at  the  time  and  on  the  dates  indicated  in  the  First  Complaint,  and  that  the  transcripts  for  those  segments  accurately  depict  those  broadcasts.  13  Clear  Channel  concedes  that 
 Stations  WXTB(  FM),  WRLX(  FM)  and  WPLA(  FM)  regularly  aired  the  Bubba  the  Love  Sponge  program  during  the  entire  period  of  time  encompassed  by  all  seven  segments  and  does  not  claim 
 that  any  of  the  stations  edited  the  show.  Consequently,  we  find  that  Stations  WXTB(  FM),  WRLX(  FM)  and  WPLA(  FM)  broadcast  all  seven  of  the  segments,  as  alleged.  Clear  Channel, 
 however,  represents  that  Station  WCKT(  FM)  did  not  begin  carrying  the  Bubba  the  Love  Sponge  program  until  October  29,  2001.  14  Because  segments  1  and  2  were  broadcast  before  WCKT(  FM) 
 commenced  airing  the  program,  we  find  that  the  station  broadcast  only  segments  3  through  7. 
 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.  15  The 

 7  See  47  U.  S.  C.    326. 
 8  18  U.  S.  C.    1464. 
 9  Public  Telecommunications  Act  of  1992,  Pub.  L.  No.  102-  356,  106  Stat.  949  (1992);  Action  for  Childrens 
 Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir  1995),  cert.  denied,  516  U.  S.  1043  (1996)  (  Act  III). 

 10  See  Attachment  A. 

 11  Supplement  to  Initial  LOI  Response  at  2. 
 12  Initial  LOI  Response  at  1. 
 13  Infinity  Broadcasting  Corp.  of  Los  Angeles  (KROQ-  FM),  Memorandum  Opinion  and  Order,  17  FCC  Rcd 
 9892,  9896,    17-  18  (2002). 
 14  See  Third  LOI  Response  at  1. 

 15  U.  S.  CONST.,  amend.  I;  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir.  1988) 
 (  ACT  I). 
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 federal  courts  consistently  have  upheld  Congresss  authority  to  regulate  the  broadcast  of  indecent  material,  as  well  the  Commissions  interpretation  and  implementation  of  the  governing  statute.  16 
 Nevertheless,  the  First  Amendment  is  a  critical  constitutional  limitation  that  demands  that,  in  indecency  determinations,  we  proceed  cautiously  and  with  appropriate  restraint.  17 

 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.  18 
 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.  19 

 7.  As  an  initial  matter,  all  of  the  seven  program  segments,  in  one  manner  or  another,  unquestionably  involved  on-  air  discussions  relating  to  descriptions  or  depictions  of  sexual  organs, 
 excretory  organs  and/  or  activities  of  a  sexual  nature.  The  broadcasts  involved  conversations  about  such  things  as  oral  sex,  penises,  testicles,  masturbation,  intercourse,  orgasms  and  breasts.  Clear 
 Channel  does  not  dispute  that  the  broadcasts  involved  such  descriptions  or  depictions.  20  Accordingly,  we  conclude  that  each  of  the  segments  that  were  broadcast  satisfies  the  first  prong  of 
 our  indecency  analysis. 
 8.  Having  satisfied  the  first  prong,  we  now  turn  to  an  analysis  of  whether  the  material  in  the  seven  segments  subject  to  this  NAL  satisfies  the  second  prong  of  the  Commissions  two-  part 
 indecency  analysis    that  is,  whether  the  broadcasts  were  patently  offensive  as  measured  by 
 16  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  654. 
 17  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  general  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy.)  See  also  United  States  v.  Playboy  Entertainment  Group,  Inc.,  529  U.  S. 
 803,  813-  15  (2000). 
 18  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)). 

 19  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). 

 20  See  Initial  LOI  Response  at  2-  6.  As  a  preface  to  its  analysis  of  each  segment,  Clear  Channel  states 
 Although  the  transcripts  do  include  references  and  phrases  of  a  sexual  nature,  and  while  some  may  find  such  material  to  be  distasteful  or  offensive,  these  references  and  phrases  alone  do  not  make  the  broadcasts 

 indecent.  Id.  at  2. 
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 contemporary  community  standards  for  the  broadcast  medium.  21  In  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically 
 important.  22  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.  23  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.  24  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,  25  or,  alternatively,  removing  the 
 broadcast  material  from  the  realm  of  indecency.  26 
 9.  We  turn  now  to  an  analysis  of  these  factors  as  they  relate  to  each  segment,  27  to  determine  whether  the  material  that  was  broadcast,  taken  in  context,  is  patently  offensive  as 
 measured  by  contemporary  community  standards  for  the  broadcast  medium. 
 Segment  1  (aired  July  19,  2001  between  6:  30  and  8:  30  a.  m.):  28  In  this  segment,  29  skits  in  which  the  voices  of  purported  cartoon  characters  talk  about  drugs  and  sex  are  inserted 
 between  advertisements  for  Cartoon  Networks  Friday  night  cartoons  that  are  identified  as  provocative  adult  cartoons  to  help  you  get  your  freak  on.  The  first  skit  begins  when 
 Shaggy  tells  Scooby  Doo  that  he  needs  crack  cocaine  but  has  no  money  to  buy  it.  Scooby  Doo  responds  that  Shaggy  could  su(  bleep)  ck  d(  bleep)  ick  to  pay  for  the  drugs.  In  the  next 
 skit,  Fat  Albert,  a/  k/  a  Phat  Diddy  Daddy,  gets  killed  in  a  drive-  by  shooting  after  bragging  that  Jennifer  Lopez  had  been  s(  bleep)  ing  Diddy  Daddys  (bleep)  ck  the  previous  night. 
 The  third  skit  begins  with  the  theme  music  from  The  Jetsons  cartoon  show.  George  Jetson  then  begins  telling  Jane  that  he  no  longer  needs  Viagra  because  he  got  a  Spacely 

 21  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  WPBN/  WTOM  License  Subsidiary,  Inc.,  15  FCC  Rcd  1838,  1841  (2000). 

 22  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    9  (emphasis  in  original). 
 23  Id.  at  8002-  15,    8-  23. 
 24  Id.  at  8003,    10. 
 25  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)). 

 26  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). 

 27  See  Attachment  A  passim. 

 28  The  complainant's  transcript  reflects  bleeps  of  certain  offensive  words.  A  review  of  the  relevant  tapes 
 indicates  that  the  letters  before  the  word  (  bleep)  in  many  cases  were  aired.  However,  although  the  transcript  suggests  otherwise,  a  review  of  the  relevant  tape  indicates  that  the  letters  after  the  word  (  bleep)  were 

 completely  bleeped.  In  any  event,  our  indecency  finding  is  not  based  on  airing  of  the  specific  bleeped  words. 
 29  See  Attachment  A  at  1-  2. 
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 Sprocket  (bleep)  ck  ring.  After  George  flips  a  switch  to  activate  the  device,  sound  effects  indicate  that  the  device  malfunctions,  and  the  skit  ends  with  George  calling  for  Jane  to  turn 
 off  the  device.  Next,  Alvin  the  Chipmunk  complains  that  he  hasnt  been  laid  in  almost  six  weeks.  Another  chipmunk  responds  that  his  problem  is  due  to  the  f(  bleep)  cking  pussy 
 music  we  play  and  begins  to  sing  a  more  kick  ass  song  directing  a  filthy  chipmunk-whore  to  [  s]  uck  on  my  (inaudible)  Chipmunk  (bleep)  s,  [  p]  ut  em  in  your  mouth  and 
 (bleep)  uck  em.  He  continues  by  singing  They  taste  like  pistachios.  Theyre  warm  and  fuzzy.  Suck  my  (bleep).  The  song  is  interrupted  by  a  final  advertisement  for  Cartoons 
 with  Balls. 
 This  segment  contains  sufficiently  graphic  and  explicit  references  to  sexual  and  excretory  organs  and  activities  to  satisfy  the  first  criterion  of  our  contextual  analysis.  Such  sexual 
 references  are  found  in  each  of  the  skits  and  are  repeated  throughout  the  segment,  satisfying  the  second  factor  of  our  contextual  analysis.  Finally,  the  use  of  cartoon  characters  in  such  a 
 sexually  explicit  manner  during  hours  of  the  day  when  children  are  likely  to  be  listening  is  shocking  and  makes  this  segment  patently  offensive.  It  is  foreseeable  that  young  children 
 would  be  particularly  attentive  listeners  to  this  segment  because  of  the  character  voices  and  the  cartoon  theme  music  used  in  the  segment.  The  calculated  and  callous  nature  of  the 
 stations  decision  to  impose  this  predictably  offensive  material  upon  young,  vulnerable  listeners  is  particularly  compelling  and  weighs  heavily  in  our  analysis.  Thus,  the  segment 
 also  satisfies  the  third  factor  of  our  contextual  analysis.  Consequently,  this  segment  is  apparently  indecent. 

 Segment  2  (July  19,  2001,  between  6:  30  and  8:  14  a.  m.):  In  this  segment,  30  a  male  applicant  for  a  job  as  an  underwear  model  calls  the  model  search  hotline  and  describes 
 his  as  the  perfect  penis,  so  gorgeous  that  [  e]  very  f(  bleep)  ing,  every  --  every  ounce  of  f(  bleep)  cking  co(  bleep)  purple  (inaudible)  of  it  should  be  hanging  in  the  f(  bleep)  cking 
 Louvre,  and  so  strong  that  it  can  lift  a  25-  pound  weight  and  can  split  his  pants  like  the  Incredible  Hulk.  Such  vivid  descriptions  of  the  callers  penis  satisfy  the  first  criterion  of 
 our  contextual  analysis.  The  entire  segment  discusses  the  mans  penis,  and  graphic  descriptions  of  it  are  referenced  throughout  the  segment.  Thus,  the  second  criterion  of 
 the  contextual  analysis  is  also  satisfied.  The  sole  purpose  of  these  vivid  descriptions  apparently  is  to  shock  and  titillate  listeners.  Thus,  the  third  criterion  of  our  contextual 
 analysis  is  satisfied.  Because  this  segment  repeats  graphic  and  explicit  descriptions  of  a  sexual  organ  in  an  effort  to  titillate  listeners,  it  appears  to  be  patently  offensive  and 
 indecent. 
 Segment  3  (November  14,  2001,  between  7:  00  and  8:  55  a.  m.):  In  this  segment,  31  one  of  the  men  participating  in  the  on-  air  discussion  is  Ned,  a  self-  described  loud  masturbator. 
 He  views  the  act  of  masturbating  in  public  as  a  performance  and  states  that  he  looks  as  though  hes  having  a  grand  mal  seizure  when  he  does  it.  When  asked  to  do  so  by  the 
 host,  Ned,  with  increasing  drum  beat  rhythms  as  an  accompaniment,  reenacts  masturbating  and  reaching  orgasm.  Despite  the  use  of  euphemisms  such  as  wax[  ing] 
 your  carrot  when  referring  to  masturbation,  and  sparky  when  referring  to  a  penis,  the  sexual  references  in  the  segment  are  unmistakable  and  sufficiently  explicit  to  satisfy  the 
 first  criteria  of  our  contextual  analysis.  The  entire  segment  dwells  at  length  on 
 30  See  Attachment  A  at  3-  5. 
 31  See  Attachment  A  at  5-  7. 
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 masturbation.  Thus,  the  second  criterion  of  our  contextual  analysis  is  also  satisfied.  Finally,  the  participants  discussions  of  masturbating  styles  and  techniques,  and  Neds 
 simulation  of  such  a  sex  act,  make  it  apparent  that  the  segment  was  used  to  titillate  and  shock  the  programs  listeners.  In  doing  so,  this  segment  satisfies  the  third  criterion  of  our 
 contextual  analysis.  Accordingly,  we  find  that  this  segment  appears  to  be  patently  offensive  and  indecent. 

 Segment  4  (November  19,  2001,  between  8:  00  and  9:  00  a.  m.):  In  this  segment,  32  three  males  interview  a  female  caller  about  her  sexual  exploits  with  Spider,  another  man.  They 
 discuss  the  length  of  Spiders  penis,  the  length  of  time  their  sexual  encounter  lasted,  and  the  sexual  techniques  they  used.  After  the  caller  indicated  that  she  had  given  Spider  oral  sex, 
 one  host  responded  that  he  hoped  Spider  had  not  given  her  oral  sex  because  heavier  women,  like  her,  have  some  cheese  down  there.  The  hosts  then  began  ridiculing  the 
 caller  about  her  size  and  asked  Are  you  like  a  Ball  Park  Plank  --  Frank,  you  p[  l]  ump  when  we  bang  ya?  The  conversation  between  the  hosts  and  the  caller  was  sufficiently  explicit 
 and  graphic  to  convey  unmistakably  the  sexual  meaning  of  the  euphemisms  they  used  and  to  satisfy  the  first  criterion  of  our  contextual  analysis.  The  participants  talked  at  length 
 about  sexual  and  excretory  activities  and  organs.  It  was  apparent  that  the  purpose  of  the  call  was  to  discuss  the  sexual  organs  and  activities  of  the  caller  and  Spider.  As  a 
 consequence,  the  discussion  dwelled  upon  the  subjects  of  sexual  organs  and  activities,  and,  thus,  satisfies  the  second  criterion  of  our  contextual  analysis.  Finally,  it  is  apparent  that  the 
 discussion  was  titillating  and  shocking  with  respect  to  the  audience.  Thus,  this  segment  meets  the  third  and  final  criterion  of  our  contextual  analysis.  As  a  consequence,  we  find 
 that  the  segment  appears  to  be  patently  offensive  and  indecent. 
 Segment  5  (November  26,  2001,  between  7:  00  and  9:  00  a.  m.):  In  this  segment,  33  a  male  host  and  two  male  cohorts  interview  or  talk  with  two  female  studio  guests  who  are 
 participants  in  a  contest  to  win  breast  implant  surgery.  The  host  takes  pictures  of  the  women  and  directs  and  describes  their  poses,  e.  g.,  directing  one  to  let  him  get  a  little  more 
 ass,  in  the  picture  and,  later,  to  pose  so  that  he  can  take  a  front  panty  shot.  A  discussion  of  oral  sex  begins  when  the  host  tells  Hillary,  one  of  the  women,  that  long  fingernails  like 
 hers  feel  so  good  on  my  boys,  and  that  his  genital  area  is  shaved.  In  response,  Hillary  states,  Thats  good.  No  --  no  hairs  in  the  teeth  and  stuff.  She  then  discusses  her 
 preference  for  giving,  rather  than  getting,  oral  sex  and  declares  herself  to  be  a  big  oral  queen  who  could  go  a  half-  hour  solid,  before  her  cheeks  would  hurt.  She  discusses 
 her  sexual  escapades  with  two  men,  her  inability  to  reach  orgasm  and  her  frequent  masturbation.  During  the  ensuing  discussion  the  host  encourages  Hillary  to  masturbate  on 
 air  while  he  watches  and  gives  a  play  by  play.  To  encourage  her  to  cooperate,  he  tells  her  that  masturbating  on  air  would  increase  her  chances  of  winning  breast  implants  and,  when 
 she  continues  to  refuse,  he  proposes  that  he  or  the  other  female  guest  give  her  manual  sex  during  the  broadcast. 

 The  graphic  and  explicit  descriptions  of  sexual  or  excretory  organs  and  activities  contained  in  this  segment  satisfy  the  first  criterion  of  our  contextual  analysis.  The  repetition  of  these 
 descriptions  and  other  sexual  references  throughout  the  segment  satisfy  the  second  criterion  of  our  contextual  analysis.  The  continued  and  repeated  explicit  and  graphic  sexual 

 32  See  Attachment  A  at  7-  9. 
 33  See  Attachment  A  at  9-  21. 
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 references  clearly  demonstrate  the  shocking  and  titillating  nature  of  the  material,  thus  satisfying  the  third  criterion  of  our  contextual  analysis.  Consequently,  we  find  that  this 
 segment  appears  to  be  patently  offensive  and  indecent. 
 Segment  6  (November  27,  2001,  between  7:  30  and  9:  00  a.  m.):  In  this  segment,  34  a  male  host  and  a  co-  host  interview  two  female  studio  guests  who  are  participants  in  the  Twelve 
 Boobs  of  Christmas  contest  to  win  breast  implant  surgery.  The  segment  begins  with  the  host  taking  pictures  of  the  contestants  boobs  in  order  to  facilitate  you  on  some  new 
 boobies,  baby.  He  then  begins  asking  about  their  sexual  activities  and  is  impressed  that  one  of  the  women,  when  giving  oral  sex,  does  not  recycle,  or  waste  a  drop.  This 
 segment  is  sufficiently  explicit  and  graphic  to  meet  criteria  one  of  our  contextual  analysis.  Because  the  sexual  descriptions  and  references  are  repeated  throughout  the  segment, 
 criterion  two  of  our  contextual  analysis  is  also  satisfied.  Finally,  these  sexual  references  and  discussions  appear  to  be  inserted  only  to  titillate  the  audience.  Thus,  criterion  three  of 
 our  contextual  analysis  is  also  met.  Consequently,  we  find  that  this  segment  appears  to  be  patently  offensive  and  indecent. 

 Segment  7  (December  27,  2001,  between  8:  00  and  9:  00  a.  m.):  In  this  segment,  35  Bubba  and  two  male  co-  hosts  discuss  the  abnormally  large  size  of  his  balls,  while  a  singer  and 
 chorus  sing  about  his  testicles  in  explicit  and  graphic  detail.  The  euphemism,  balls,  is  a  common  one,  generally  known  to  mean  testicles,  a  sexual  organ.  Descriptions,  such  as 
 those  stating  that  Bubbas  balls,  which  are  the  size  of  cantaloupes  or  coconuts,  are  firm  and  meaty  with  ingrown  hairs,  are  sufficiently  graphic  to  meet  the  first 
 contextual  criteria.  Such  descriptions  are  repeated  at  length  during  the  entire  segment,  satisfying  the  second  contextual  criterion.  Finally,  the  material  satisfies  the  third  criterion 
 of  our  contextual  analysis  because  it  is  pandering,  titillating  and  shocking  to  the  programs  listeners.  Thus,  we  find  that  this  segment  appears  to  be  patently  offensive  and 
 indecent. 
 10.  Based  on  the  foregoing,  we  find  that  the  material  that  was  broadcast  in  these  seven  segments  satisfies  the  second  prong  of  our  two-  part  test  and,  thus,  appear  patently  offensive,  as 
 measured  by  contemporary  community  standards  for  the  broadcast  medium.  Because  we  have  found  these  seven  segments  to  have  apparently  satisfied  both  prongs  of  our  two  part  test,  we 
 conclude  that  the  material  contained  apparently  indecent  speech. 
 11.  Each  of  the  segments  was  broadcast  between  6  a.  m.  to  10  p.  m.,  at  a  time  of  day  when  the  broadcast  of  indecent  material  is  explicitly  prohibited  by  Section  73.3999  of  the 
 Commissions  rules.  Because  these  segments  appear  to  have  contained  indecent  speech  and  were  broadcast  at  times  of  the  day  when  indecent  speech  is  proscribed,  each  of  the  broadcasts  appears  to 
 be  legally  actionable.  36  We  find,  therefore,  that  three  of  the  captioned  stations  (Stations  WXTB(  FM),  WRLX(  FM)  and  WPLA(  FM))  each  broadcast  seven  apparently  indecent  segments,  37 
 in  apparent  willful  and  repeated  violation  of  Title  18  U.  S.  C.    1464  and  Section  73.3999  of  the 

 34  See  Attachment  A  at  21-  25. 
 35  See  Attachment  A  at  26-  28. 
 36  See  ACT  III,  58  F.  3d  at  660-  63. 
 37  See  supra    4. 
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 Commissions  rules.  In  addition,  the  fourth  captioned  station  (Station  WCKT(  FM)),  which  began  carrying  the  Bubba  the  Love  Sponge  program  subsequent  to  the  other  stations,  broadcast  five  of 
 the  apparently  indecent  segments  (Segments  3,  4,  5,  6  and  7),  38  also  in  apparent  willful  and  repeated  violation  of  Title  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules.  39 

 B.  Public  Inspection  File 
 12.  Section  73.3526(  e)(  10)  of  the  Commissions  rules  requires  broadcast  licensees  to  maintain  a  public  inspection  file  containing  specific  types  of  information.  Section  73.3526(  e)(  10) 
 specifies  that,  among  the  documents  that  must  be  included  in  the  file,  is  material  having  a  substantial  bearing  on  a  matter  which  is  the  subject  of  an  FCC  investigation  or  complaint  to  the 
 FCC  .  .  .  40  Such  material  must  be  retained  in  a  stations  public  inspection  file  pending  written  notification  that  it  may  be  discarded.  41  Where  lapses  occur  in  maintaining  the  public  inspection  file, 
 neither  the  negligent  acts  nor  omissions  of  station  employees  or  agents,  nor  the  subsequent  remedial  actions  undertaken  by  the  licensee,  excuse  or  nullify  a  licensee's  rule  violation.  42 

 13.  It  is  beyond  dispute  that,  on  August  22,  2001,  each  of  the  four  captioned  stations  failed  to  include  copies  of  documents  relating  to  Mr.  Vanderlaans  First  Complaint  in  its  public 
 inspection  file.  In  declarations  accompanying  the  Second  Complaint,  Mr.  Vanderlaan,  Dr.  David  D.  Swanson,  Kathy  Taunton  and  Sally  Oesch  each  states  that,  on  that  date,  he  or  she  visited  one  of  the 
 captioned  stations  during  normal  business  hours,  reviewed  its  public  inspection  file,  and  determined  that  the  file  did  not  contain  a  copy  of  the  First  Complaint  or  any  documents  related  to  it.  43 
 Although  Clear  Channel  does  not  dispute  these  allegations,  it  argues  that  Station  WXTB(  FM)  should  be  relieved  of  liability  for  its  failure  to  have  maintained  the  First  Complaint  in  its  public 
 inspection  file  because  a  copy  of  the  document  was  located  elsewhere  in  the  station  after  the  requester  had  specifically  identified  and  requested  it.  44  This  argument  lacks  merit.  The 
 Commission  requires  that  such  documents  be  maintained  in  the  public  inspection  file.  45  The  obvious  intent  of  the  rule  is  to  facilitate  public  access  to  such  documents.  To  require  an  individual 

 38  Id. 
 39  The  First  Complaint  also  included  allegations  of  indecency  with  respect  to  three  other  broadcast  segments. 
 We  conclude  that  these  broadcasts  were  not  sufficiently  graphic  and/  or  sustained  to  be  considered  indecent  and  are  denying  the  First  Complaint  with  respect  to  these  segments. 

 40  47  C.  F.  R.    73.  3526(  e)(  10). 
 41  Id. 
 42  See  Padre  Serra  Communications,  Inc.,  14  FCC  Rcd  9709  (1999)  (citing  Gaffney  Broadcasting,  Inc.,  23 
 FCC  2d  912,  913  (1970)  and  Eleven  Ten  Broadcasting  Corp.,  33  FCC  706  (1962));  Surrey  Front  Range  Limited  Partnership,  71  RR  2d  882  (FOB  1992)  ("  Surrey"). 

 43  Second  Complaint  at  Exhibits  1,  4.  In  the  Declaration  of  Ms.  Taunton,  who  attempted  to  inspect  the 
 WXTB(  FM)  public  file,  she  states  that,  after  specifically  asking  to  see  the  First  Complaint,  [  a]  copy  of  the  Complaint  was  subsequently  found  in  the  station  managers  office  and  made  available  for  my  review.  Id.  at 

 Exhibit  3.  However,  it  is  clear  that,  had  Ms.  Taunton  not  been  aware  of  that  document,  she  would  not  have  learned  of  it  from  her  inspection  of  the  file,  the  purpose  behind  the  requirement  that  it  be  included  in  the  file. 

 44  Third  LOI  Response  at  2. 
 45  47  C.  F.  R.    73.3526(  e)(  10). 
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 member  of  the  public  to  examine  a  stations  public  inspection  file  and  then  identify  for  station  personnel  what  is  missing  from  it  clearly  is  inconsistent  with  the  intent  of  the  rule  section. 
 14.  Based  on  the  information  before  us,  we  find  that  the  captioned  licensees  at  each  of  their  respective  captioned  stations  failed  to  maintain  certain  required  documents  in  their  respective 
 public  inspection  files,  in  apparent  willful  violation  of  Section  73.3526(  e)(  10)  of  the  Commissions  rules. 

 C.  Other  Allegations 
 15.  In  his  First  Complaint,  Mr.  Vanderlaan  alleges  that  Clear  Channel  engaged  in  intimidating  and  abusive  conduct  after  he  had  filed  his  First  Complaint  with  the  Commission,  by 
 threatening  him  with  legal  action  and  complaining  to  his  employer.  46  A  finding  of  [  i]  ntimidation  or  harassment  of  witnesses  requires  threats  of  reprisals  or  some  other  unnecessary  and  abusive 
 conduct  reasonably  calculated  to  dissuade  a  witness  from  continuing  his  or  her  involvement  in  a  proceeding.  47  In  this  case,  Mr.  Vanderlaan  presents  no  evidence  to  corroborate  his  claim  that 
 Clear  Channel  contacted  his  employer  and  provides  only  a  copy  of  his  attorneys  response  to  a  letter  purportedly  from  the  attorney  for  Todd  Bubba  Clem  (the  host  of  the  program)  to 
 corroborate  his  allegation  that  he  was  threatened  with  legal  action  by  Clear  Channel.  In  fact,  Mr.  Vanderlaan  presents  no  evidence  that  the  captioned  licensees  or  Clear  Channel  made,  or  were 
 even  aware  of,  the  contacts  about  which  he  complains.  Consequently,  there  is  insufficient  evidence  to  support  a  finding  that  Clear  Channel  or  the  captioned  licensees  engaged  in 
 intimidation  or  abuse.  Accordingly,  we  find  no  merit  to  this  allegation. 
 16.  In  both  his  First  Complaint  and  Third  Complaint  and  Supplement,  Mr.  Vanderlaan  alleges  that  Clear  Channel  promotes  the  use  of  illegal  drugs.  48  Consistent  with  the  Commissions 
 limited  role  overseeing  programming  content  mandated  by  the  First  Amendment  and  Section  326  of  the  Act,  49  there  is  no  rule  or  statutory  provision  barring  a  licensee  from  airing  material 
 referencing  drug  use.  50  Thus,  the  allegations  concerning  this  material  do  not  warrant  enforcement  action. 

 IV.  PROPOSED  FORFEITURE 
 17.  Having  determined  that  the  captioned  licensees  apparently  willfully  and/  or  repeatedly  violated  18  U.  S.  C.    1464  and  Sections  73.  3999  and  73.3526(  e)(  10)  of  the 
 Commissions  rules,  we  turn  to  an  analysis  of  whether,  and  to  what  extent,  we  should  propose 

 46  See  First  Complaint  at  15-  16. 
 47  See  Isothermal  Community  College,  DA  03-  3638,  2003  WL  22682096  (Enf.  Bur.  November  14,  2003) 
 (citing  Kaye-  Smith  Enterprises,  98  FCC  2d  675,  682  (1984));  Hoffart  v.  FCC,  787  F.  2d  675  (D.  C.  Cir.  1986)  (citing  Chronicle  Broadcasting  Co.,  19  FCC  2d  240,  244  (1969)). 

 48  See  also  Second  Vanderlaan  Reply. 
 49  47  U.  S.  C.    326. 
 50  See,  e.  g.,  Licensee  Responsibility  to  Review  Records  Before  Their  Broadcast,  Notice,  28  FCC  2d  409 
 (1971),  modified,  Memorandum  Opinion  and  Order,  31  FCC  2d  377  (1971),  affd  sub  nom,  Yale  Broadcasting  Co.  v.  FCC,  478  F.  2d  594  (D.  C.  Cir.  1973),  cert.  denied,  414  U.  S.  914  (1973). 
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 sanctions  in  this  instance.  Under  Section  503(  b)(  1)  of  the  Act,  51  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.  52  In  order  to  impose  such  a  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  penalty  should  be  imposed.  53 
 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,  regulation  or  order.  54 

 18.  In  the  instant  case,  we  have  determined  that  three  of  the  captioned  stations  (Stations  WXTB(  FM),  WRLX(  FM)  and  WPLA(  FM))  each  broadcast  seven  apparently  indecent 
 segments  of  the  Bubba  the  Love  Sponge  program,  in  apparent  willful  and  repeated  violation  of  Title  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules,  and  that  the  remaining 
 captioned  station  (Station  WCKT(  FM)),  which  began  carrying  the  Bubba  the  Love  Sponge  program  after  the  other  stations,  broadcast  five  apparently  indecent  segments,  in  apparent  willful 
 and  repeated  violation  of  Title  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules.  Stated  otherwise,  we  conclude  that  the  captioned  licensees  apparently  violated  18  U.  S.  C.    1464 
 and  Section  73.3999  of  the  Commissions  rules  on  a  total  of  26  separate  occasions.  Consequently,  based  upon  our  review  of  the  record  in  this  case,  we  conclude  that  Clear  Channel, 
 as  the  parent  of  each  licensee,  is  apparently  liable  for  forfeitures  based  upon  26  willful  and  repeated  violations  of  our  indecency  rules.  55 

 19.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000  for  the  transmission  of  indecent  material.  56  The  Forfeiture  Policy  Statement  also  specifies 
 51  47  U.  S.  C.    503(  b)(  1). 
 52  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. 

 53  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f). 
 54  See,  e.  g.,  SBC  Communications,  Inc.,  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  7589, 
 7591,    4  (2002)  (forfeiture  paid). 
 55  7  broadcasts  x  3  stations  (WXTB(  FM),  WRLX(  FM)  and  WPLA(  FM))  =  21  violations  +  5  broadcasts  by 
 WCKT(  FM)  =  26  violations. 
 56  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  has  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  Amendment  of  Section  1.80(  b)  of  the 
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 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.  57 

 20.  Based  upon  our  review  of  the  record  before  us,  we  believe  that  an  upward  adjustment  to  the  statutory  maximum  of  $27,500  for  each  of  the  26  apparent  indecency  violations  is 
 warranted.  The  large  number  of  apparent  violations  here,  combined  with  Clear  Channels  repeated  broadcasts  in  the  past  of  apparently  indecent  material  over  multiple  stations  licensed  to  its 
 subsidiaries,  evidences  a  pattern  of  violations  that  justifies  a  proposed  forfeiture  of  the  statutory  maximum.  58 

 21.  Because  we  find  that  Clear  Channel,  through  its  subsidiary  captioned  licensee  companies,  apparently  violated  18  U.  S.  C.    1464  and  Section  73.3999  of  the  Commissions  rules 
 on  26  separate  occasions,  and  that  each  such  violation  is  subject  to  an  apparent  forfeiture  in  the  amount  of  $27,500,  we  conclude  that  Clear  Channel  is  apparently  liable  for  a  forfeiture  in  the 
 amount  of  $715,000  for  willfully  and  repeatedly  broadcasting  indecent  material  during  various  segments  of  the  Bubba  the  Love  Sponge  program  over  the  captioned  stations.  Particularly  in  light 
 of  Clear  Channels  history  of  violations  of  the  indecency  rules,  we  also  take  this  opportunity  to  reiterate  our  recent  admonition  (which  took  place  after  the  behavior  at  issue  here)  that  serious 
 multiple  violations  of  our  indecency  rule  by  broadcasters  may  well  lead  to  the  commencement  of  license  revocation  proceedings.  59  We  expect  Clear  Channel  in  particular  to  take  this  admonition 
 seriously. 
 22.  We  also  have  previously  determined  that  the  four  captioned  stations  failed  to  maintain  certain  required  documents  in  their  respective  public  inspection  files,  in  apparent  willful 

 violation  of  Section  73.3526(  e)(  10)  of  the  Commissions  rules.  Based  upon  the  factors  articulated  in  Section  503(  b)(  2)(  D)  of  the  Act  and  the  base  forfeiture  amount  specified  in  the 
 Forfeiture  Policy  Statement  for  violations  of  the  our  public  inspection  file  rules,  we  conclude  that  a  proposed  forfeiture  is  warranted  in  the  base  forfeiture  amount  of  $10,000  for  each  of  the  four 
 apparent  willful  violations  of  Section  73.3526(  e)(  10)  of  the  Commissions  rules,  for  a  total  of  $40,000. 

 Commissions  Rules  and  Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  15  FCC  Rcd  18221  (2000). 
 57  The  maximum  forfeiture  amount  for  a  single  violation  for  the  broadcast  of  apparently  indecent  material  is 
 $27,500.  47  C.  F.  R.    1.80(  b)(  1). 

 58  See,  e.  g.,  AMFM  Radio  Licenses,  LLC  (WWDC(  FM)),  Notice  of  Apparent  Liability  for  Forfeiture,  FCC  03-233 
 (rel.  Oct.  2,  2003)  (forfeiture  paid);  Citicasters  Co.  (KEGL(  FM)),  Notice  of  Apparent  Liability  for  Forfeiture,  16  FCC  Rcd  7546  (Enf.  Bur.  2001)  (forfeiture  paid);  Citicasters  Co.  (WXTB(  FM)),  Forfeiture 

 Order,  15  FCC  Rcd  25453  (2000)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  Notice  of  Apparent  Liability  for  Forfeiture,  15  FCC  Rcd  19095  (Enf.  Bur.  2000)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  Notice  of 
 Apparent  Liability  for  Forfeiture,  15  FCC  Rcd  19091  (Enf.  Bur.  2000)  (forfeiture  paid);  Citicasters  Co.  (WXTB(  FM)),  Forfeiture  Order,  15  FCC  Rcd  11906  (2000)  (forfeiture  paid). 

 59  See  Infinity  Broadcasting  Operations,  Inc.(  WKRK-  FM),  Forfeiture  Order,  18  FCC  Rcd  6915,  6919,    13 
 (2003);  see  also  AMFM  Radio  Licenses  LLC  (WWDC-  FM),  Notice  of  Apparent  Liability  for  Forfeiture,  18  FCC  Rcd  19917,  16  (2003)  (forfeiture  paid);  Infinity  Broadcasting  Operations,  Inc.(  WNEW(  FM),  Notice  of 

 Apparent  Liability  for  Forfeiture,  18  FCC  Rcd  19954,    19  (2003)  (response  pending). 
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 V.  ORDERING  CLAUSES 
 23.  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,  60  that  Clear 
 Channel  Communications,  Inc.,  the  parent  company  of  each  of  the  above-  captioned  licensees,  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  total  amount  of 
 Seven  Hundred  Fifty-  Five  Thousand  Dollars  ($  755,  000),  for  willfully  violating  18  U.  S.  C.    1464  and  Sections  73.3999  and  73.  3526(  e)(  10)  of  the  Commissions  rules.  61 

 24.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  Notice,  Clear  Channel  Communications,  Inc. 
 SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  against  it  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  H.  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/  Acct.  No.  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  (  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  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.  62 
 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 

 60  47  C.  F.  R.    1.80. 
 61  Station  WXTB(  FM),  Station  WRLX(  FM)  and  Station  WPLA(  FM)  shall  each  be  allocated  the  sum  of  Two 
 Hundred  Two  Thousand  Five  Hundred  Dollars  ($  202,500.00)  for  six  indecency  violations  and  one  public  inspection  file  violation  (6  x  $27,500  =  $192,  500  +  $10,000  =  $202,500).  The  sum  of  One  Hundred  Forty-Seven 

 Thousand  Five  Hundred  Dollars  ($  147,500.00)  is  allocated  to  Station  WCKT(  FM)  for  five  violations  of  the  Commissions  indecency  rules  and  one  violation  of  the  Commissions  public  inspection  file  rule  [5  x 
 $27,500  =  $137,  500  +  $10,000  =  $147,500). 
 62  See  47  C.  F.  R.    1.1914. 
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 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 
 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  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  First  Complaint,  Second  Complaint  and  Third  Complaint  and  Supplement  filed  by  Douglas  Vanderlaan  ARE  GRANTED  to  the  extent 
 indicated  herein,  AND  ARE  OTHERWISE  DENIED,  and  the  complaint  proceeding  IS  HEREBY  TERMINATED. 

 31.  IT  IS  FURTHER  ORDERED,  that  copies  of  this  Notice  of  Apparent  Liability  For  Forfeiture  shall  be  sent,  by  Certified  Mail  Return  Receipt  Requested,  to  Mr.  Kenneth  E.  Wyker,  Senior  Vice  President  & 
 General  Counsel,  Clear  Channel  Communications,  Inc.,  c/  o  Clear  Channel  Worldwide,  200  East  Basse  Road,  San  Antonio,  Texas  78209-  8328,  with  a  copy  to  Clear  Channels  counsel,  John  M.  Burgett,  Esq.,  at  Wiley, 
 Rein  &  Fielding,  LLP,  1776  K  Street,  N.  W.,  Washington,  D.  C.,  20006,  and  to  Mr.  Douglas  Vanderlaan,  8114  Parkridge  Circle  South,  Jacksonville,  Florida  32211,  with  a  copy  to  his  counsel,  Arthur  V.  Belendiuk,  Esq.,  at 
 Smithwick  &  Belendiuk  P.  C.,  5028  Wisconsin  Avenue,  N.  W.,  #301,  Washington,  D.  C.  20016. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 Marlene  H.  Dortch  Secretary 
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 Attachment  A  Excerpts  From  WPLA(  FM)  Program  Transcript 
 Provided  As  Exhibit  2  to  April  3,  2002,  Complaint  of  Douglas  Vanderlaan 
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 Attachment  B 
 FCC  List  of  Small  Entities 
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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 
 International  Public  Fixed  Radio  (Public  and  Control  Stations) 
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 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 

 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 
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 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 
 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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 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Licensee  of  Station  WPLA(  FM),  Callahan,  Florida;  WCKT(  FM),  Port  Charlotte,  Florida  (Formerly  Station  WRLR(  FM));  Citicasters 
 Licenses,  L.  P.,  Licensee  of  Station  WXTB(  FM),  Clearwater,  Florida;  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WRLX(  FM),  West  Palm  Beach,  Florida. 

 Seven  broadcasts,  twenty-  six  indecency  violations,  four  public  file  violations  and  fines  equaling  $755,  000.  By  todays  action,  we  provide  yet  another  example  of  this  Commissions 
 commitment  to  enforce  its  rules  and  regulations  especially  as  it  relates  to  indecent  programming  engulfing  our  broadcast  airwaves. 

 As  the  Commission  with  the  strongest  enforcement  record  in  decades,  it  should  come  as  little  surprise  that  this  Commissions  indecency  enforcement  has  dwarfed  its  predecessors.  I  am 
 proud  of  the  fact  that  over  the  past  three  years,  we  have  proposed  nearly  twice  the  dollar  amount  of  indecency  fines  than  the  previous  two  Commissions  combined  (over  seven  years)  and  ten  times 
 the  amount  of  fines  proposed  by  the  last  Commission. 
 Now  is  not,  however,  a  time  to  rest  on  our  laurels  and  no  broadcaster  should  believe  that  we  will.  Indeed,  due  to  the  leadership  on  this  issue  from  Commissioner  Martin,  the  Commission 
 will  soon  begin  considering  fines  for  each  separate  utterance  found  indecent  in  a  broadcast.  In  addition,  we  will  continue  to  look  to  Congress  to  dramatically  increase  the  enforcement  penalties 
 available  to  us  to  prosecute  clear  indecency  violations.  I  applaud  Chairman  Upton,  Chairman  Tauzin,  Congressmen  Dingell  and  Markey,  Chairman  McCain,  Senator  Hollings  and  the  many 
 others  on  both  sides  of  the  aisle  in  Congress  for  providing  vital  leadership  on  this  issue. 
 As  the  Commission  continues  the  challenging  task  of  balancing  the  protections  of  the  First  Amendment  with  the  need  to  protect  our  young,  these  increased  enforcement  actions  will  allow  the 
 Commission  to  turn  what  is  now  a  cost  of  doing  business  into  a  significant  cost  for  doing  indecent  business. 
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 ____________  Federal  Communications  Commission  FCC  04-  17 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS, 
 DISSENTING 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Licensee  of  Stations  WPLA(  FM),  Callahan,  Florida,  and  WCKT(  FM),  Port  Charlotte,  Florida  (Formerly  Station  WRLR(  FM));  Citicasters 
 Licenses,  L.  P.,  Licensee  of  Station  WXTB(  FM),  Clearwater,  Florida;  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WRLX(  FM),  West  Palm  Beach,  Florida,  Notice  of  Apparent 
 Liability  for  Forfeiture 
 In  this  case,  four  Clear  Channel  stations  aired  on  several  occasions  graphic  and  explicit  sexual  content  as  entertainment.  The  extreme  nature  of  these  broadcasts  and  the  fact  that  the 
 show  at  issue  has  been  the  subject  of  repeated  indecency  actions  gives  the  FCC  the  obligation  to  take  serious  action.  Instead,  the  majority  proposes  a  mere  $27,500  fine  for  each  incident.  Such  a 
 fine  will  be  easily  absorbed  as  a  cost  of  doing  business  and  fails  to  send  a  message  that  the  Commission  is  serious  about  enforcing  the  nations  indecency  laws.  Cost  of  doing  business 
 fines  are  never  going  to  stop  the  medias  slide  to  the  bottom. 
 To  fulfill  our  duty  under  the  law,  I  believe  the  Commission  should  have  designated  these  cases  for  a  hearing  on  the  revocation  of  these  stations  licenses,  as  provided  for  by  Section 
 312(  a)(  6)  of  the  Communications  Act.  I  am  discouraged  that  my  colleagues  would  not  join  me  in  taking  a  firm  stand  against  indecency  on  the  airwaves. 

 If  the  Commission  cant  bring  itself  to  go  to  a  revocation  hearing,  at  least  the  Commission  should  have  used  its  current  statutory  authority  to  impose  a  higher  and  meaningful 
 fine.  The  Commission  could  have  proposed  a  fine  for  each  separate  utterance  that  was  indecent,  rather  than  one  fine  for  each  lengthy  segment.  As  Commissioner  Martin  points  out, 
 such  an  approach  would  have  led  to  a  significantly  higher  fine. 
 Here,  four  Clear  Channel  stations  ran  several  segments  of  the  Bubba  the  Love  Sponge  show  which  contained  graphic  and  explicit  sexual  content.  The  majority  admits  that  each  of  these 
 stations  appears  to  have  egregiously  and  extensively  violated  the  statutory  ban  on  broadcast  of  indecent  material  numerous  times.  But  then  the  majority  inexplicably  determines  that  the 
 appropriate  recourse  for  this  filth  is  a  $27,500  fine  for  each  violation. 
 The  majority  states  that,  in  light  of  Clear  Channels  history  of  violations  of  the  indecency  rules,  other  serious  multiple  violations  may  well  lead  to  license  revocation  proceedings.  The 
 majority  fails  to  acknowledge  that  not  just  Clear  Channel,  but  the  Bubba  the  Love  Sponge  show,  has  been  the  subject  of  at  least  three  previous  fines  for  violating  our  nations  indecency 
 laws.  This  is  not  even  three  strikes  and  you  are  out  enforcement.  How  many  strikes  are  we  going  to  give  them? 

 This  case  may  well  lead  broadcasters  to  believe  that  this  Commission  will  never  use  the  enforcement  authority  it  currently  has  available  to  it.  The  message  to  licensees  is  clear.  Even 
 egregious  repeated  violations  will  not  result  in  revocation  of  a  license.  Rather,  they  will  result  only  in  a  financial  penalty  that  is  merely  a  cost  of  doing  business. 

 The  time  has  come  for  this  Commission  to  take  a  firm  stand  against  the  race  to  the  bottom  as  the  level  of  discourse  on  the  publics  airwaves  gets  progressively  coarser  and  more 
 violent.  Our  enforcement  actions  should  convince  broadcasters  that  they  cannot  ignore  their 
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 responsibility  to  serve  the  public  interest  and  to  protect  children.  The  FCCs  action  today  fails  to  do  so. 
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 ____________  Federal  Communications  Commission  FCC  04-  17 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Licensee  of  Station  WPLA(  FM),  Callahan,  Florida,  WCKT(  FM),  Port  Charlotte,  Florida;  Citicasters  Licenses,  L.  P.,  Licensee  of 
 Station  WXTB(  FM),  Clearwater,  Florida;  Capstar  TX  Limited  Partnership,  Licensee  of  Station  WRLX(  FM),  West  Palm  Beach,  Florida,  Notice  of  Apparent  Liability  for 
 Forfeiture 
 I  agree  with  this  Notices  conclusion  that  the  licensees  at  issue  apparently  violated  our  indecency  rule  and  public  file  requirements. 

 I  write  separately  to  emphasize  again  that  we  could,  and  should,  be  placing  higher  fines  on  those  who  broadcast  indecent  programming  during  the  hours  when  children  may  be  watching 
 or  listening,  in  violation  of  our  rules  and  statute.  The  governing  statute  targets  whoever  utters  indecent  or  profane  language,  and  the  Commission  should  not  continue  to  treat  an  entire  program 
 full  of  indecent  utterances  as  just  one  violation.  1  We  should  not  continue  to  give  a  broadcaster  who  violates  our  indecency  rule  at  the  beginning  of  a  program  a  free  pass  for  the  next  two 
 hours. 
 In  this  case,  I  would  have  found  numerous  violations,  for  a  total  indecency  fine  significantly  higher  than  that  proposed  (it  appears  there  were  at  least  49  indecency  violations,  for 
 a  total  forfeiture  exceeding  $1,000,000). 

 1  See  18  U.  S.  C.    1864  (  Whoever  utters  any  obscene,  indecent,  or  profane  language  by  means  of  radio 
 communication  shall  be  fined  under  this  title  or  imprisoned  not  more  than  two  years,  or  both),  47  C.  F.  R.    73.3999  (  No  licensee  of  a  radio  or  television  broadcast  station  shall  broadcast  on  any  day  between  6  a.  m.  and 

 10  p.  m.  any  material  which  is  indecent). 
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 ____________  Federal  Communications  Commission  FCC  04-  17 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Clear  Channel  Broadcasting  Licenses,  Inc.,  Notice  of  Apparent  Liability  for  Forfeiture 
 The  Commission  has  a  duty  to  enforce  statutory  and  regulatory  provisions  restricting  broadcast  indecency.  The  material  broadcast  by  these  four  Clear  Channel  radio  stations  is 
 undeniably  graphic  and  explicit  in  its  sexual  content  and  clearly  intended  to  shock  listeners.  Clear  Channel  and,  indeed,  this  particular  Bubba  the  Love  Sponge  program  have  been  the 
 subject  of  repeated  Commission  indecency  actions  in  the  past.  Given  the  explicit  nature  of  the  broadcast  material  and  the  history  of  prior  offenses,  this  is  the  type  of  serious  repeated  behavior 
 that  I  believe  would  warrant  initiation  of  license  revocation  hearings. 
 In  fairness,  however,  this  material  was  broadcast  in  2001.  The  Commission  clarified  in  an  April  2003  order  that  it  was  broadening  its  range  of  enforcement  approaches  and  tools  to 
 combat  indecency  on  our  nations  public  airwaves.  For  this  reason,  I  approve  of  todays  Order  as  legally  appropriate.  The  egregious  nature  of  the  material  clearly  warrants  the  statutory  maximum 
 $27,500  fine  per  violation.  While  the  Commission  at  all  times  has  the  authority  to  initiate  license  revocation  hearings  or  sanction  for  multiple  indecent  utterances  in  a  given  program  segment,  it 
 can  be  argued  that  the  Commission  was  not  employing  these  approaches  at  the  time  this  material  was  broadcast.  Nonetheless,  as  we  made  clear  last  year,  broadcasters  are  now  aware  that  the 
 Commission  will  not  hesitate  to  use  its  full  range  of  enforcement  sanctions  for  indecent  material  broadcast  after  April  2003. 

 I  also  acknowledge  the  importance  of  broadcasters  adhering  to  the  public  inspection  file  rules.  Documents  pertaining  to  an  FCC  investigation  are  clearly  within  the  scope  of  the 
 information  that  must  be  maintained  in  a  manner  accessible  to  the  listening  public.  In  this  case,  each  of  the  stations  inexplicably  failed  to  include  complaints  related  to  the  airing  of  this  material 
 in  their  public  files. 
 A  broadcast  license  is  a  public  privilege.  In  return,  broadcasters  have  a  responsibility  to  serve  the  public.  This  public  interest  responsibility  clearly  encompasses  protecting  children  from 
 indecency  on  the  airwaves  and  facilitating  public  access  to  documentation  through  which  the  station  can  remain  accountable  to  its  local  community  and  listening  public.  These  stations 
 exhibited  a  blatant  disregard  for  both. 
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