*Pages 1--17 from  Microsoft Word - 35131*
 Federal  Communications  Commission  FCC  04-  16 
 1  1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 YOUNG  BROADCASTING  OF  SAN  FRANCISCO,  INC. 
 Licensee,  Station  KRON-  TV  San  Francisco,  California 


 )  ) 
 )  ) 
 )  ) 
 )  ) 
 ) 


 File  No.  EB-  02-  IH-  0786  NAL/  Acct.  No.  200432080010 
 FRN  0004675815  Facility  ID  No.  65526 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  January  23,  2004  Released:  January  27,  2004 
 By  the  Commission:  Chairman  Powell,  and  Commissioners  Copps,  Martin,  and  Adelstein  issuing  separate  statements. 


 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  Young  Broadcasting  of  San  Francisco,  Inc.  (  Young),  licensee  of  Station  KRON-  TV,  San  Francisco,  California,  aired  program  material  during  the  KRON  4  Morning 
 News  show  on  October  4,  2002,  that  apparently  violates  the  federal  restrictions  regarding  the  broadcast  of  indecent  material.  2  Based  upon  our  review  of  the  facts  and  circumstances  of  this  case,  we  conclude 
 that  Young  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  Twenty-  Seven  Thousand  Five  Hundred  Dollars  ($  27,500.00),  the  statutory  maximum  in  this  context,  for  broadcasting  indecent  material 
 in  apparent  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 
 II.  BACKGROUND 


 2.  The  Enforcement  Bureau  (  Bureau)  received  a  complaint  alleging  that  Station  KRON-TV  aired  indecent  material  during  the  KRON  4  Morning  News  show  on  October  4,  2002,  at 
 approximately  8:  25  a.  m.  3  Specifically,  the  complainant  stated  that  the  shows  hosts  interviewed  performers  with  the  stage  production  of  Puppetry  of  the  Penis,  who  appeared  in  capes  but  were 
 otherwise  naked  beneath  the  capes.  4  The  complainant  further  alleged  that,  during  the  course  of  the 


 1  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80. 
 2  See  18  U.  S.  C.    1464;  47  C.  F.  R.    73.  3999;  and  47  U.  S.  C.    503(  b). 
 3  Letter  from  Pamela  T.  Ferguson  to  the  Federal  Communications  Commission,  Enforcement  Bureau,  Investigations 
 and  Hearings  Division,  dated  October  7,  2002.  4 
 Id.  We  note  that  the  complainant  incorrectly  identified  the  stage  production  as  The  Penis  Puppeteers. 
1
 Federal  Communications  Commission  FCC  04-  16 
 2  2 
 interview,  one  of  the  performers  exposed  his  penis  while  preparing  to  demonstrate  genital  origami.  5 
 3.  On  May  27,  2003,  the  Bureau  sent  a  letter  of  inquiry  to  Young  concerning  the  material  aired  over  KRON-  TV  on  October  4,  2002,  and  included  a  copy  of  the  complaint.  6  Young  responded  to 


 the  Bureaus  letter  of  inquiry  on  July  3,  2003,  and  provided  a  videotape  of  the  KRON  4  Morning  News  show  aired  between  7:  00  and  9:  00  a.  m.  on  October  4,  2002.  7  During  a  segment  of  the  broadcast  in 
 question,  the  shows  hosts  interviewed  two  male  performers  who  tour  with  the  stage  production  Puppetry  of  the  Penis.  8  The  performers  appeared  on  camera  wearing  capes  and  discussed  their  stage 
 show,  in  which  they  appear  nude  in  order  to  manipulate  and  stretch  their  genitalia  to  simulate  a  wide  variety  of  installations,  including  objects,  architecture,  and  people.  9  During  the  course  of  the  interview, 
 one  of  the  performers  asked  whether  they  could  demonstrate,  by  stating  should  we  show  you  a  couple  of  quick  ones?  10  One  of  the  shows  two  hosts  agreed,  if  the  demonstration  was  done  quickly.  11  As  the 
 performers  stood  and  apparently  turned  away  from  the  camera  to  demonstrate  their  act  to  the  shows  hosts,  the  penis  of  one  was  fully  exposed  on-  camera.  12 


 4.  Young  maintains  that  the  complained-  of  material,  in  context,  does  not  meet  the  Commissions  indecency  definition,  and  that  no  further  action  is  warranted.  Young  acknowledges  that  the 
 performers  penis  was  exposed,  but  argues  that  this  very  brief  exposure  was  accidental  and  unintentional,  13  and  that  the  complained-  of  material  was  part  of  the  bona  fide  news  coverage  of  the 
 Puppetry  of  the  Penis.  14  Young  also  points  out  that,  prior  to  the  time  that  the  segment  at  issue  aired,  the  shows  hosts  repeatedly  referenced  the  subject  matter  of  the  interview  segment  and  suggested  that  parents 
 might  want  to  prevent  their  children  from  viewing  the  interview.  15  In  addition,  Young  notes  that,  immediately  following  the  broadcast  of  the  complained-  of  material,  the  shows  hosts  twice  apologized  on 


 5  Id. 
 6  Letter  from  the  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  to  Young  Broadcasting  of  San 
 Francisco,  Inc.,  dated  May  27,  2003.  7 
 See  Letter  from  Mark  J.  Prak,  Esquire,  and  Stephen  Hartzell-  Jordan,  Esquire,  Brooks,  Pierce,  McLendon,  Humphrey  &  Leonard,  L.  L.  P.,  counsel  to  Young  Broadcasting  of  San  Francisco,  Inc.,  to  the  Investigations  and 


 Hearings  Division,  Enforcement  Bureau,  dated  July  3,  2003  (  Young  Response)  at  1.  In  addition,  the  Bureaus  supplemental  letter  of  inquiry,  issued  July  29,  2003,  asked  Young  to  provide  information  and  documentation 
 concerning  whether  all  or  any  portion  of  the  complained-  of  material  was  broadcast  over  any  other  commonly-  owned  station.  Letter  from  the  Deputy  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  to  Young 
 Broadcasting  of  San  Francisco,  Inc.,  dated  July  29,  2003.  By  letter  dated  August  4,  2003,  Young  responded  that  it  did  not  broadcast  all  or  any  portion  of  the  complained-  of  material  over  any  station  licensed  to  it  other  than  Station 
 KRON-  TV.  See  Letter  from  Mark  J.  Prak,  Esquire,  and  Stephen  Hartzell-  Jordan,  Esquire,  Brooks,  Pierce,  McLendon,  Humphrey  &  Leonard,  L.  L.  P.,  counsel  to  Young  Broadcasting  of  San  Francisco,  Inc.,  to  the 
 Investigations  and  Hearings  Division,  Enforcement  Bureau,  dated  August  4,  2003  (  Young  Supplemental  Response)  at  1. 
 8  Young  Response  at  Exhibits  C,  D,  E  and  F. 
 9  Young  Response  at  and  Exhibits  D,  E,  and  F.  Specifically,  the  performers  use  their  genitalia  to  create,  among  other 
 things,  likenesses  of  the  Eiffel  Tower,  a  hamburger,  a  baby  kangaroo,  a  boomerang,  public  figures  and  movie  characters. 


 10  Id.  at  Exhibit  C,  8:  22  a.  m. 
 11  Id.  at  2  and  Exhibit  C,  8:  22  a.  m. 
 12  Id.  at  Attachment  2  and  Exhibit  C,  8:  22  a.  m. 
 13  Id.  at  1,  5,  6,  8. 
 14  Id.  at  4. 
 15  Id.  at  3. 
2
 Federal  Communications  Commission  FCC  04-  16 
 3  3 
 the  air  and,  on  the  day  of  the  broadcast,  the  station  issued  a  press  release  apologizing  for  the  incident.  16  Moreover,  Young  states  that  it  took  disciplinary  action  following  the  broadcast  by  suspending  station 
 personnel  involved.  17 
 III.  DISCUSSION 
 5.  The  Federal  Communications  Commission  is  authorized  to  license  radio  and  television  broadcast  stations  and  is  responsible  for  enforcing  the  Commissions  rules  and  applicable  statutory 


 provisions  concerning  the  operation  of  those  stations.  The  Commissions  role  in  overseeing  program  content  is  very  limited.  The  First  Amendment  to  the  United  States  Constitution  and  section  326  of  the 
 Act  prohibit  the  Commission  from  censoring  program  material  and  from  interfering  with  broadcasters  freedom  of  expression.  18  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.  19  In  addition,  section  73.3999  of  the  Commissions  rules  provides  that  radio  and  television  stations  shall  not 
 broadcast  obscene  material  at  any  time,  and  shall  not  broadcast  indecent  material  during  the  period  6  a.  m.  through  10  p.  m. 


 6.  Under  section  503(  b)(  1)  of  the  Act,  any  person  who  is  determined  by  the  Commission  to  have  willfully  or  repeatedly  failed  to  comply  with  any  provision  of  the  Act  or  any  rule,  regulation,  or 
 order  issued  by  the  Commission  shall  be  liable  to  the  United  States  for  a  forfeiture  penalty.  20  In  order  to  impose  such  a  forfeiture  penalty,  the  Commission  must  issue  a  notice  of  apparent  liability,  the  notice  must 
 be  received,  and  the  person  against  whom  the  notice  has  been  issued  must  have  an  opportunity  to  show,  in  writing,  why  no  such  forfeiture  penalty  should  be  imposed.  21  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.  22  As  set  forth  in  greater  detail  below,  we  conclude  under  this  standard  that  Young  is  apparently  liable  for  a 
 forfeiture  for  its  apparent  willful  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 


 16  Id.  at  1,  Attachment  1  and  Exhibit  I. 
 17  Young  Response  at  12,  Exhibit  H. 
 18  See  47  U.  S.  C.    326. 
 19  18  U.  S.  C.    1464. 
 20  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 
 18  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.  21 
 47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f).  22 
 See,  e.  g.,  SBC  Communications,  Inc.,  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  7589,  7591    4  (2002)(  forfeiture  paid). 
3
 Federal  Communications  Commission  FCC  04-  16 
 4  4 
 A.  Indecency  Analysis 
 7.  Any  consideration  of  government  action  against  allegedly  indecent  programming  must  take  into  account  the  fact  that  such  speech  is  protected  under  the  First  Amendment.  23  The  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.  24  Nevertheless,  the  First 
 Amendment  is  a  critical  constitutional  limitation  that  demands  that,  in  indecency  determinations,  we  proceed  cautiously  and  with  appropriate  restraint.  25 


 8.  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.  26 
 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.  27 


 9.  As  an  initial  matter,  Young  does  not  dispute  that  Station  KRON-  TV  aired  adult  male  frontal  nudity.  28  Because  the  broadcast  material  depicted  a  sexual  organ,  it  therefore  warrants  further 
 scrutiny  to  determine  whether  or  not  it  was  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  29 


 10.  In  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  30  Three  principal  factors  are  significant  to  this 


 23  U.  S.  CONST.,  amend.  I;  See  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir.  1988)  (  ACT 
 I).  24 
 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);  Action  for  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C. 
 Cir.  1995),  cert.  denied,  516  U.  S.  1043  (1996)  (  ACT  III).  25 
 ACT  I,  852  F.  2d  at  1344  (  Broadcast  material  that  is  indecent  but  not  obscene  is  protected  by  the  First  Amendment;  the  FCC  may  regulate  such  material  only  with  due  respect  for  the  high  value  our  Constitution  places 


 on  freedom  and  choice  in  what  people  may  say  and  hear.).  See  also  id.  at  1340  n.  14  (  the  potentially  chilling  effect  of  the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement 
 policy.).  26 
 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)). 


 27  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). 


 28  Young  Response  at  6. 
 29  The  contemporary  standards  for  the  broadcast  medium  criterion  is  that  of  an  average  broadcast  listener  and  with 
 respect  to  Commission  decisions,  does  not  encompass  any  particular  geographic  area.  See  Indecency  Policy  Statement,  at  8002,    8  and  n.  15. 


 30  Id  at  8002,    9  (emphasis  in  original). 
4
 Federal  Communications  Commission  FCC  04-  16 
 5  5 
 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.  31  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.  32  In  particular  cases,  one  or  two  of  the  factors  may  outweigh  the  others,  either  rendering  the  broadcast  material  patently 
 offensive  and  consequently  indecent,  33  or,  alternatively,  removing  the  broadcast  material  from  the  realm  of  indecency.  34  In  this  case,  we  examine  all  three  factors  and  determine  that,  in  context  and  on  balance, 
 the  complained-  of  material  is  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  We  note  that,  in  particular,  the  stations  presentation  of  full  frontal  nudity  in  a 
 manner  that  was  pandering,  titillating  and  shocking  weighs  heavily  in  this  determination. 
 11.  First,  Young  admits  that  there  was  an  actual  depiction  of  the  male  genitalia.  However,  Young  argues  that  because  the  exposure  of  the  performers  penis  was  accidental  and  the  duration  of  the 


 exposure  was  very  limited,  the  material  is  not  graphic  or  explicit.  We  disagree,  finding  that  assertions  that  the  exposure  was  fleeting  and  unintentional  are  more  appropriate  to  the  analysis  under  the  second  and 
 third  factors,  as  discussed  below.  We  find  that  in  the  context  presented  here,  the  depiction  of  adult  male  frontal  nudity  was  graphic  and  explicit. 


 12.  Second,  although  the  actual  exposure  of  the  performers  penis  was  fleeting  in  that  it  occurred  for  less  than  a  second,  the  manner  in  which  the  station  presented  this  material  establishes,  under 
 the  third  factor,  that,  in  its  overall  context,  the  material  was  apparently  intended  to  pander  to,  titillate  and  shock  viewers.  Thus,  we  reject  Youngs  assertion  that  this  material  is  equivalent  to  other  instances  in 
 which  the  Commission  has  ruled  that  fleeting  remarks  in  live,  unscripted  broadcasts  do  not  meet  the  indecency  definition.  35 


 13.  The  record  here  demonstrates  that  the  station  failed  to  take  adequate  precautions  to  ensure  that  no  actionably  indecent  material  was  broadcast  despite  its  awareness  that  the  interview 
 31  Indecency  Policy  Statement  at  8002-  15,    8-  23. 
 32  Id.  at  8003,    10. 
 33  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)). 


 34  Indecency  Policy  Statement,  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). 


 35  Young  cites  Flambo  Broadcasting,  Inc.  (KFMH-  FM),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  9 
 FCC  Rcd  1681  (MMB  1994).  However,  in  that  case,  no  action  was  taken  with  regard  to  a  radio  stations  broadcast  of  sexual  material  in  a  crude  joke,  because  there  was  a  conflict  as  to  what  was  actually  broadcast,  and  no  tape  or 


 other  evidence  to  establish  the  language  broadcast  and  when  the  licensee  cut  off  the  outside  callers  rendition  of  the  joke.  Nevertheless,  assuming  that  the  joke  was  cut  off  immediately,  the  staff  of  the  then-  Mass  Media  Bureau  found 
 that  it  would  not  have  been  actionably  indecent  because  it  was  brief,  live,  unscripted  and  from  an  outside  source.  Young  also  cites  L.  M.  Communications  of  South  Carolina,  Inc.  (WYBB(  FM)),  Notice  of  Apparent  Liability  for 
 Monetary  Forfeiture,  7  FCC  Rcd  1595  (MMB  1992),  in  which  a  fleeting  and  an  isolated  utterance,  within  the  context  of  a  live  and  spontaneous  broadcast,  was  found  not  actionably  indecent.  See  also  Indecency  Policy 
 Statement,  16  FCC  Rcd  at  8009,    18,  setting  forth  the  utterance  broadcast  in  L.  M.  Communications:  The  hell  I  did,  I  drove  the  mother-  fucker,  oh.  Oh.  In  addition,  Young  cites  a  contested  license  renewal  in  which  a  news 
 announcers  utterance,  Ooops,  fucked  that  one  up,  was  found  not  to  warrant  further  action  in  light  of  the  isolated  and  accidental  nature  of  the  broadcast.  Lincoln  Dellar  (KPRL(  AM)  and  KDDB(  FM)),  8  FCC  Rcd  2582,  2585    26 
 (MMB  1993).  These  cases  are  distinguishable  because  there  was  no  finding  that  the  material,  in  context,  was  pandering,  titillating  or  intended  to  shock  the  audience. 
5
 Federal  Communications  Commission  FCC  04-  16 
 6  6 
 involved  performers  who  appear  nude  in  order  to  manipulate  and  stretch  their  genitalia.  36  Under  these  circumstances,  the  airing  of  indecent  material  during  the  interview  was  clearly  foreseeable.  37  Here,  we 
 find  inherently  not  credible  Youngs  assertion  that  certain  station  personnel  were  unaware  that  the  performers  were  nude  beneath  the  capes  worn  on-  camera.  38  At  the  beginning  of  the  segment,  one  of  the 
 shows  hosts  explains  that  the  Puppetry  of  the  Penis  begins  []  with  two  naked  performers  in  capes  with  us  this  morning  [].  39  The  performers  later  acknowledged,  when  asked  by  the  shows  hosts,  that 
 they  perform  wearing  nothing  more  than  capes,  which  are  discarded  after  four  minutes,  shoes  and  socks,  and  that  one  of  them  also  wears  a  hat.  40  Moreover,  the  segment,  as  broadcast,  includes  comments  of 
 station  personnel  who  are  off  the  set,  and  who  urge  the  performers  to  demonstrate  by  stating,  lets  see  it.  41  One  of  the  shows  hosts  responds  to  the  comment,  stating,  Jan  and  Janelle,  theyre  tired  of  the 
 talking[].  42  The  segment  also  includes  camera  shots  of  these  women  off  the  set  as  they  observe  the  performers  manipulation  of  their  genitalia.  43  In  addition,  following  the  actual  exposure  of  the 
 performers  penis  and  the  off-  set  shots,  the  shows  cameras  were  directed  only  to  the  performers  upper  bodies  as  they  continued  to  demonstrate  a  portion  of  their  act,  displaying  their  penises  off-  camera.  44  This 
 indicates  that  the  station  purposefully  set  up  its  cameras  to  attempt  to  avoid  full  frontal  body  shots,  even  though  this  effort  ultimately  was  unsuccessful. 


 14.  Young  nevertheless  argues  that  the  complained-  of  material  was  not  aired  to  pander  to  or  titillate  the  audience,  nor  was  it  broadcast  for  its  shock  value.  45  Young  thus  maintains  that  the  material  at 
 issue  here  was  not  patently  offensive  for  the  same  reasons  that  the  Commission  ruled  that  frontal  adult  nudity  depicted  in  a  broadcast  of  the  film  Schindlers  List  was  not  patently  offensive.  46  We  disagree.  In 
 that  decision,  the  Commission  held  that  the  staff  of  the  then-  Mass  Media  Bureau  had  properly  concluded  that  a  broadcast  of  this  film  was  not  patently  offensive  as  measured  by  contemporary  community 
 standards  for  the  broadcast  medium,  based  upon  the  full  context  of  its  presentation,  including  the  subject  matter  of  the  film,  the  manner  of  presentation,  and  the  warnings  that  accompanied  the  broadcast  of  the 
 film.  The  staff  determined,  and  the  Commission  agreed,  that  in  the  particular  broadcast  of  the  film  at  issue,  the  depiction  of  adult  frontal  nudity  was  incidental  to  the  broadcast  materials  rendering  of  a 
 historical  view  of  World  War  II  and  wartime  atrocities,  which,  viewed  in  context,  was  not  presented  in  a 


 36  Id.  at  Attachment  2,    4  (Declaration  of  KRON-  TVs  then-  Executive  Producer  stating  that  she  gave  great 
 consideration  to  the  wisdom  of  such  an  interview.).  37 
 CBS  Radio  License,  Inc.  (WLLD(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  15  FCC  Rcd  23881,  23883,    8  (EB  2000)(  given  licensees  awareness  of  the  actual  language  used  in  performers  recordings,  it  should 


 have  taken  precautions  to  avoid  airing  material  meeting  the  indecency  definition  during  a  live,  unscripted  broadcast),  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  16  FCC  Rcd  4825  (EB  2001),  Memorandum  Opinion  and  Order 
 denying  reconsideration  of  Forfeiture  Order,  17  FCC  Rcd  18339  (EB  2002)(  application  for  review  pending);  Regent  Licensee  of  Flagstaff,  Inc.,  (KZGL(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  15  FCC  Rcd  17286, 
 17288,    9  (EB  2000)(  forfeiture  paid).  38 
 Young  Response  at  2  and  Attachment  2,    6.  39 
 Id.  at  Exhibit  C,  8:  17  a.  m.  40 
 Id.  at  Exhibit  C,  8:  19  a.  m.  41 
 Id.  at  Exhibit  C,  8:  21  a.  m.  42 
 Id.  at  Exhibit  C,  8:  22  a.  m.  43 
 Id.  44 
 Id.  45 
 Id.  at  10.  46 
 Id.  at  10-  11,  citing  WPBN/  WTOM  License  Subsidiary,  Inc.  (WPBN-  TV  and  WTOM-  TV),  15  FCC  Rcd  1838  (2000). 
6
 Federal  Communications  Commission  FCC  04-  16 
 7  7 
 pandering,  titillating  or  vulgar  manner.  47  By  contrast,  the  manner  of  presentation  of  the  complained-  of  material  over  Station  KRON-  TV,  for  which  the  licensee  failed  to  take  adequate  precautions,  was 
 pandering,  titillating  and  shocking,  as  discussed  above.  We  note,  in  particular,  the  off-  camera  employees  comments  urging  the  performers  to  conduct  a  nude  demonstration,  and  the  partially  off-  camera 
 demonstration  to  the  shows  hosts.  48  Considering  the  overall  context  of  the  segment,  the  presence  of  warnings  issued  by  the  station  is  not  a  sufficient  basis  on  which  to  conclude  that  the  complained-  of 
 material  is  not  patently  offensive.  49  Nor  do  we  find  that  Youngs  apologies  to  Station  KRON-  TV  viewers  and  the  disciplinary  actions  taken  against  certain  station  employees  following  the  broadcast  mitigate  its 
 liability  for  violation  of  the  statute  and  the  Commissions  rules.  50  We  find  that  the  weight  of  the  pandering,  titillating  and  shocking  manner  of  presentation,  coupled  with  the  graphic  and  explicit  nature  of 
 the  adult  male  frontal  nudity,  renders  this  broadcast  indecent  under  the  statute. 
 15.  It  is  undisputed  that  the  complained-  of  material  was  broadcast  within  the  6  a.  m.  to  10  p.  m.  time  frame  relevant  to  an  indecency  determination  under  section  73.3999  of  the  Commissions  rules. 


 Thus,  because  there  was  a  reasonable  risk  that  children  may  have  been  in  the  audience  at  the  time  that  the  material  at  issue  was  broadcast  on  October  4,  2002,  the  broadcast  is  legally  actionable.  51  By  airing  this 
 material,  Young  apparently  violated  the  prohibitions  in  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules,  the  rule  against  broadcast  indecency. 


 B.  Proposed  Forfeiture 
 16.  Based  upon  our  review  of  the  record  in  this  case,  we  conclude  that  Young  is  apparently  liable  for  the  willful  violation  of  our  rules.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base 


 forfeiture  amount  of  $7,000  for  transmission  of  indecent  or  obscene  materials.  52  The  Forfeiture  Policy  Statement  also  specifies  that  the  Commission  shall  adjust  a  forfeiture  based  upon  consideration  of  the 
 factors  enumerated  in  section  503(  b)(  2)(  D)  of  the  Act,  47  U.  S.  C.    503(  b)(  2)(  D),  such  as  the  nature,  circumstances,  extent  and  gravity  of  the  violation,  and,  with  respect  to  the  violator,  the  degree  of 
 culpability,  any  history  of  prior  offenses,  ability  to  pay,  and  such  other  matters  as  justice  may  require.  53  In  this  case,  taking  all  of  these  factors  into  consideration,  we  find  that  Young  is  apparently  liable  for  a 
 forfeiture  of  $27,500.00,  which  is  the  statutory  maximum.  Based  upon  our  review  of  the  entire  record,  we 
 47  WPBN/  WTOM  License  Subsidiary,  Inc.,  15  FCC  Rcd  at  1839-  40,    3,13. 
 48  See    13,  supra. 
 49  See,  e.  g.,  Emmis  Radio  License  Corporation  (WKQX(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture, 
 17  FCC  Rcd  5263,  5267    13  (EB  2002),  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  21697  (EB  2002)(  petition  for  reconsideration  of  Forfeiture  Order  pending);  Citicasters  Co.  (KEGL(  FM)),  Notice  of 


 Apparent  Liability  for  Monetary  Forfeiture,  16  FCC  Rcd  7546,  7547,  6  (EB  2001)  (forfeiture  paid)  (licensees  warnings  to  listeners  that  program  may  contain  material  more  suitable  for  adults  has  no  bearing  on  whether  a 
 forfeiture  should  be  imposed  for  material  that  is  actionably  indecent).  50 
 See,  e.  g.,  AT&  T  Wireless  Services,  Inc.,  17  FCC  Rcd  21866,  21871  (2002)  (remedial  actions  not  a  basis  for  mitigation);  Eure  Family  Limited  Partnership,  17  FCC  Rcd  21861  (2002)  (licensee  responsible  for  actions  of  its 


 employees).  51 
 See  ACT  III,  58  F.  3d  at  660-  63.  52 
 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  recently  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  Order,  In  the  Matter  of  Amendment  of  Section  1.80(  b)  of  the  Commissions  Rules  and  Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  15  FCC  Rcd  18221  (2000). 


 53  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  1710-  01,    27. 
7
 Federal  Communications  Commission  FCC  04-  16 
 8  8 
 believe  that  this  upward  adjustment  is  warranted.  The  broadcast  was  extremely  graphic  and  titillating.  Given  the  fact  that  the  licensee  broadcast  material  involving  performers  who  appear  nude  in  order  to 
 manipulate  their  genitalia,  and  who  were  in  fact  nude  during  the  interview  except  for  easily  removed  capes,  the  licensee  failed  to  take  adequate  precautions  to  prevent  the  broadcast  of  indecent  material. 
 Consequently,  the  egregious  nature  of  the  violation  and  the  degree  of  culpability  justify  an  increase  to  the  maximum  statutory  amount. 


 IV.  ORDERING  CLAUSES 
 17.  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,  54  that  Young  Broadcasting  of  San 


 Francisco,  Inc.  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  FORFEITURE  in  the  amount  of  Twenty-  Seven  Thousand  Five  Hundred  Dollars  ($  27,500.00)  for  willfully  violating  18  U.  S.  C.    1464 
 and  section  73.  3999  of  the  Commissions  rules. 
 18.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  (30)  days  of  the  release  of  this  Notice,  Young  SHALL  PAY  the  full  amount  of  the  proposed 


 forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 19.  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  Number  (  FRN)(  0004675815)  and  also  should  note 
 the  NAL/  Account  Number  (200432080010). 
 20.  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. 
 21.  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. 


 22.  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.  55 
 23.  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  Young  qualifies  as  a  small  entity  and  if  it  wishes  to  be  treated  as  a  small  entity  for  tracking  purposes,  it  should  so  certify  to  us  within  thirty  (30)  days  of  this  NAL,  either  in  its  response 
 to  the  NAL  or  in  a  separate  filing  to  be  sent  to  the  Investigations  and  Hearings  Division.  The  certification  should  indicate  whether  Young,  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) 


 54  47  C.  F.  R.    1.80. 
 55  See  47  C.  F.  R.    1.1914. 
8
 Federal  Communications  Commission  FCC  04-  16 
 9  9 
 set  forth  in  Attachment  A  of  this  Notice  of  Apparent  Liability.  This  information  will  be  used  for  tracking  purposes  only.  Youngs  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  Young  has  questions  regarding  any  of  the  information  contained  in  Attachment  A,  it  should  contact  OCBO  at  (202)  418-  0990. 


 24.  Accordingly,  IT  IS  ORDERED,  that  the  complaint  filed  against  Station  KRON-  TVs  broadcast  on  October  4,  2002,  IS  GRANTED  to  the  extent  indicated  herein,  AND  IS  OTHERWISE 
 DENIED,  and  the  complaint  proceeding  IS  HEREBY  TERMINATED.  56 
 25.  IT  IS  FURTHER  ORDERED,  that  a  copy  of  this  Notice  of  Apparent  Liability  For  Forfeiture  shall  be  sent  by  Certified  Mail  Return  Receipt  Requested  to  Paul  Dinovitz,  President  and 


 General  Manager,  Young  Broadcasting  of  San  Francisco,  Inc.,  1001  Van  Ness  Avenue,  San  Francisco,  California  94109  and  to  Youngs  counsel,  Mark  J.  Prak,  Esquire  and  Stephen  Hartzell-  Jordan,  Esquire, 
 Brooks,  Pierce,  McLendon,  Humphrey  &  Leonard,  L.  L.  P.,  Wachovia  Capitol  Center,  Suite  1600  (27601),  Post  Office  Box  1800,  Raleigh,  North  Carolina  27602,  and  to  Pamela  T.  Ferguson. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 


 56  Consistent  with  section  503(  b)  of  the  Act  and  consistent  Commission  practice,  for  the  purposes  of  the  forfeiture 
 proceeding  initiated  by  this  NAL,  Young  shall  be  the  only  party  to  this  proceeding. 
9
 Federal  Communications  Commission  FCC  04-  16 
 10  10 
 ATTACHMENT  A 
 FCC  List  of  Small  Entities 
 As  described  below,  a  small  entity  may  be  a  small  organization,  a  small  governmental  jurisdiction,  or  a  small  business. 


 (1)  Small  Organization  Any  not-  for-  profit  enterprise  that  is  independently  owned  and  operated  and 
 is  not  dominant  in  its  field. 


 (2)  Small  Governmental  Jurisdiction  Governments  of  cities,  counties,  towns,  townships,  villages,  school  districts,  or 
 special  districts,  with  a  population  of  less  than  fifty  thousand. 


 (3)  Small  Business  Any  business  concern  that  is  independently  owned  and  operated  and 
 is  not  dominant  in  its  field,  and  meets  the  pertinent  size  criterion  described  below. 


 Industry  Type  Description  of  Small  Business  Size  Standards  Cable  Services  or  Systems 
 Cable  Systems  Special  Size  Standard    Small  Cable  Company  has  400,  000  Subscribers  Nationwide  or  Fewer 
 Cable  and  Other  Program  Distribution  Open  Video  Systems  $12.5  Million  in  Annual  Receipts  or  Less 


 Common  Carrier  Services  and  Related  Entities  Wireline  Carriers  and  Service  providers 
 Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange  Carriers, 
 Operator  Service  Providers,  Payphone  Providers,  and  Resellers  1,500  Employees  or  Fewer 
10
 Federal  Communications  Commission  FCC  04-  16 
 11  11 
 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) 
 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) 
11
 Federal  Communications  Commission  FCC  04-  16 
 12  12 
 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  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) 
12
 Federal  Communications  Commission  FCC  04-  16 
 13  13 
 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) 
13
 Federal  Communications  Commission  FCC  04-  16 
 1  1 
 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Young  Broadcasting  of  San  Francisco,  Inc.,  Licensee,  Station  KRON-  TV,  San  Francisco,  Notice  of  Apparent  Liability  for  Forfeiture 
 Today,  we  open  another  front  in  our  increased  efforts  to  curb  indecency  on  our  nations  airwaves  by  focusing  on  indecency  on  television.  I  believe  it  is  irresponsible  of  our  countrys  programmers  and 
 broadcasters  to  continue  to  try  and  push  the  envelope  in  the  face  of  Commission  policies  aimed  at  balancing  the  needs  to  protect  our  children  with  the  interests  of  the  First  Amendment.  Where,  as  here,  we 
 believe  that  a  broadcast  crosses  that  line,  we  will  continue  to  enforce  our  indecency  rules  with  vigor. 
14
 Federal  Communications  Commission  FCC  04-  16 
 1  1 
 SEPARATE  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Young  Broadcasting  of  San  Francisco,  Inc.,  Licensee,  Station  KRON-  TV,  San  Francisco,  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL) 
 I  am  pleased  that  this  Commission  is  finally  taking  an  initial  step  against  indecency  on  television.  That  being  said,  I  am  disappointed  that  this  complaint  was  filed  over  15  months  ago  and  we  are  just  now 
 addressing  it.  When  we  allow  complaints  to  languish  for  over  a  year,  the  message  is  loud  and  clear  that  the  FCC  is  not  serious  about  enforcing  our  nations  laws.  Meanwhile,  numerous  other  complaints  about 
 indecency  on  television  remain  unaddressed.  I  hope  we  will  take  up  those  complaints  expeditiously.  The  time  has  come  for  this  Commission  to  take  a  firm  stand  against  the  race  to  the  bottom  on  the  publics 
 airwaves. 
15
 Federal  Communications  Commission  FCC  04-  16 
 1  1 
 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 Re:  Young  Broadcasting  of  San  Francisco,  Inc.,  Licensee,  Station  KRON-  TV,  San  Francisco,  Notice  of  Apparent  Liability  for  Forfeiture 
 I  support  the  strong  action  the  Commission  is  taking  today  to  enforce  our  indecency  regulations.  While  hard  to  believe,  this  appears  to  be  only  the  second  time  the  Commission  has 
 ever  found  a  television  broadcast  to  be  indecent.  I  hope  that  this  step  today  represents  the  beginning  of  a  commitment  to  consider  each  indecency  complaint  seriously,  and  to  recognize  that 
 indecency  on  our  airwaves  is  not  limited  to  the  radio. 
16
 Federal  Communications  Commission  FCC  04-  16 
 1  1 
 SEPARATE  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Young  Broadcasting  of  San  Francisco,  Inc.,  Licensee,  Station  KRON-  TV,  San  Francisco,  Notice  of  Apparent  Liability  for  Forfeiture 
 I  strongly  support  the  action  we  take  today  to  combat  indecency  on  broadcast  television.  The  Commission  has  a  duty  to  enforce  statutory  and  regulatory  provisions  restricting  broadcast 
 indecency.  The  material  broadcast  in  this  case  clearly  warrants  the  statutory  maximum  $27,500  fine.  I  hope  that  todays  action  will  continue  to  remind  broadcasters  of  their  responsibility  to 
 serve  the  public  interest  and  protect  children  from  indecency  on  the  airwaves.  Todays  action  continues  a  series  of  measures  indicating  that  the  Commission  is  stepping  up  its  enforcement 
 against  indecency  on  the  airwaves. 
17