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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554
In the Matter of                )
                                )
Liability of KGB, Inc.,         )
                                )
Former Licensee of Radio Station)
KGB-FM, San Diego, CA           )
                                )
For a Forfeiture                )
                 MEMORANDUM OPINION AND ORDER
                      AND FORFEITURE ORDER
   Adopted:  August 21, 1998            Released:  August 26, 1998
By the Commission:
     1.  The Commission has under consideration (1) a $25,000 Notice of Apparent Liability (NAL) issued
pursuant to 47 U.S.C.  503(b) on May 26, 1992, to KGB, Inc. ("KGB"), the former licensee of Station KGB-
FM, San Diego, California; and (2) the licensee's June 16, 1992, response to the NAL, asking that the
forfeiture be reduced.
     2.  Section 1464 of Title 18 of the United States Code prohibits utterances of "any obscene, indecent
or profane language by means of radio communication."  18 U.S.C.  1464.  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.
The NAL to KGB was issued for three broadcasts which appeared to be indecent. The transcripts of those
broadcasts, on February 23, March 16, and April 13, 1990, are attached.
     3.  The licensee asserts that the forfeiture amount of $25,000 is excessive when compared with other
cases that are legally and factually similar.  In particular, KGB points to a $6,000 NAL issued on October 29,
1990, to Rusk Corporation for three indecent broadcasts by Station KLOL, Houston, TX, early in 1990.
KGB sees no factor that accounts for the huge difference in forfeiture amounts other than the Commission's
delay of more than two years in issuing an NAL to KGB.  This delay, says KGB, put it at a disadvantage; if
it had received an NAL in a more timely manner, as occurred in the case of KLOL, the forfeiture amount might
have been considerably less.
     4.  We do not agree with KGB's apparent contention that the timing of its NAL, issued well within the
statute of limitations, was arbitrary and capricious and resulted in an unduly high forfeiture.  Nor do we believe
that an NAL in the amount of $25,000 was unfair or excessive in this case.  It is true that the broadcasts cited
against KGB in the 1992 NAL and those cited in the NAL issued to KLOL(FM) in 1990 aired
contemporaneously.  It is also true that we fined KLOL(FM) shortly after the broadcasts, while a substantial
interval elapsed between KGB's broadcasts and the issuance of its forfeiture notice.  It does not follow,
however, that the timing was the basis for the higher fine issued to KGB.
     5.  In at least one very important respect, KGB's violations were critically distinct from those of
KLOL(FM) (and from all our previous indecency cases at the time the NAL was issued).  This distinction
warranted both additional consideration of KGB's case and a higher forfeiture.  KGB's broadcast on February
23, 1990, consisted of prerecorded music and lyrics ("Candy Wrapper") which the Commission had specifically
determined in a prior decision to be indecent.  See WIOD, Inc., 6 FCC Rcd 3704 (MMB 1989).  The
subsequent broadcast of such material, where express notice of its indecent nature was available, constituted
egregious misconduct that was unique in our indecency enforcement experience.  By the time we were ready
to issue an NAL to KGB, we had adopted forfeiture assessment guidelines, and we found them useful in
determining an appropriate forfeiture amount.  Starting with the base amount of $12,500, as suggested in those
guidelines, we increased the fine to $25,000 because there were several broadcasts involved, and because we
found it particularly exacerbating that KGB had broadcast "Candy Wrapper" under the circumstances
described.  KGB, Inc., 7 FCC Rcd at 3207.
     6.  There are two reasons to reconsider the forfeiture amount, however.  First of all, since the date of
the NAL, the United States Court of Appeals for the District of Columbia Circuit has set aside the forfeiture
guidelines upon which we had partially relied to determine the amount of monetary liability.  See United States
Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"), setting aside our Policy Statement on
Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised,
8 FCC Rcd 6215 (1993).   Therefore, we will, in assessing this forfeiture, apply directly the statutory factors
in 47 U.S.C.  503(b) to the particular facts of this case, looking to case precedent for guidance.  In addition,
we will consider, as KGB urges, whether a reduction is warranted because of "KGB's long and otherwise
unblemished broadcast and operational record."
     7.  In the previous broadcasts of "Candy Wrapper," where no explicit notice of the violative nature of
the broadcast was available to the licensees, the licensee in each case received an NAL for $2,000 per
violation.   That amount is clearly too low for the broadcast of "Candy Wrapper" in this case, because the
broadcast of this material in the face of our prior determination that it was indecent constituted egregious
conduct.  Under these circumstances, we believe that a forfeiture of $7,500 is appropriate.  See Waterman
Broadcasting Corp. of Texas, 11 FCC Rcd 14547 (1996)(rescinded on other grounds), attaching a higher
degree of culpability for the subsequent broadcast of material previously determined by the Commission to be
indecent and assessing a $7,500 forfeiture; and Jones Eastern of the Outer Banks, Inc., 10 FCC Rcd 3759
(1995), assessing a $12,000 forfeiture (higher than previous fines for such violations) because "the licensee
was operating in violation of the main studio rule after being specifically advised by the Mass Media Bureau
that its operation violated the rule."  Id. at 3760 (emphasis added).  In addition to the $7,500 forfeiture for the
"Candy Wrapper" broadcast, the two broadcasts of "Sit on My Face," which were explicit and vulgar but did
not involve exacerbating factors like those discussed above, warrant a fine of $4,000.  See American Radio
Systems License Corp., 12 FCC Rcd 8282 (1997); and Tempe Radio, Inc., 12 FCC Rcd 21828 (1997), (each
assessing forfeitures of $2,000 for a single broadcast of indecent material).
     8.  As a final factor, we note that KGB has had a long and favorable compliance history.  A review
of KGB's broadcast record indicates that no other sanctions were imposed against it.  Weighing KGB's history
of overall compliance prior to these broadcasts, and its apparent lack of violations in the  period since these
broadcasts, we will reduce the $11,500 total forfeiture to $9,200.  See In the Matter of Liability of WVGO
License Limited Partnership, 12 FCC Rcd 5918 (1997) (reduction based on history of compliance and prompt
acknowledgement and correction of programming problems).
     9.  Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, IT IS
ORDERED, that KGB, Inc., the former licensee of Radio Station KGB-FM, San Diego, CA, FORFEIT to the
United States the sum of nine thousand and two hundred dollars ($9,200) for egregious and repeated violations
of 18 U.S.C. Section 1464.  Payment of the forfeiture may be made by mailing to the Commission a check or
similar instrument payable to the Federal Communications Commission.  In regard to this forfeiture proceeding,
the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized
in the attachment to this Memorandum Opinion and Order.
                         FEDERAL COMMUNICATIONS COMMISSION
                         Magalie Roman Salas
                         Secretary
Station KGB-FM, San Diego, CA
"Friday Morning Blow-Out"
February 23, 1990, at 8:37 a.m.
We're going to have a little adjunct to the Friday Morning Blow-Out here.  We've had so  many requests for
this today that we're going to play it right now.  This is the Candy Wrapper Song on 101, KGB-FM.
(Song:) It was another Pay Day and I was tired of being a Mr. Goodbar, when I saw Miss Hershey standing
behind the Powerhouse on the corner of Clark and 5th Avenue, I whipped out my Whopper and whispered, Hey
Sweettart, how'd you like to Crunch on my Big Hunk for a Million Dollar Bar?  Well, she immediately went
down on my Tootsie Roll and you know, it was like pure Almond Joy.  I couldn't help but grab her delicious
Mounds 'cause it was easy to see that this little Twix had the Red Hots.  It was all I could do to hold back a
Snicker and a Krackle as my Butterfinger went up her tight little Kit Kat, and she started to scream Oh, Henry!
Oh, Henry!  Soon she was fondling my Peter Paul and Zagnuts and I knew it wouldn't be long before I blew
my Milk Duds clear to Mars and gave her a taste of the old Milky Way.  She asked if I was into M & M's and
I said, Hey, Chicklet, no kinky stuff.  I said, Look you little Reese Piece, don't be a Zero, be a Life Saver, why
don't you just take my Whatchamacallit and slip it up your Bit-O-Honey.  Oh, what a piece of Juicy Fruit she
was too.  She screamed Oh, Crackerjack.  You're better than the Three Musketeers!  as I rammed my Ding
Dong up her Rocky Road and into her Peanut Butter Cup.  Well, I was I was giving it to her Good 'n Plenty,
and all of a sudden, my Starburst.  Yeah, as luck would have it, she started to grow a bit Chunky and
complained of a Wrigley in her stomach.  Sure enough, nine months later, out popped a Baby Ruth.
March 16, 1990, between 8 and 8:20 a.m.;
and April 13, 1990, approximately 8 a.m.
Male Chorus:
      Sit on my face and tell me that you love me.
      I'll sit on your face and tell you I love you, too.
      I love to hear you moralize when I'm between your thighs.
      You blow me away.
      Sit on my face and let my lips embrace you.
      I'll sit on your face and then I'll love you (?) truly.
      Life can be fine, if we both sixty-nine,
      If we sit on faces (?) the ultimate places to play,(?)
      We'll be blown away.