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 Federal  Communications  Commission  FCC  04-  35 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 


 AMFM  RADIO  LICENSES,  L.  L.  C. 
 Licensee  of  Station  WIHT(  FM),  Washington,  D.  C. 


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 File  No.  EB-  02-  IH-  0737  NAL/  Acct.  No.  200432080019 
 FRN  #0001656586  Facility  ID  #  25080 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  February  20,  2004  Released:  June  10,  2004 


 By  the  Commission:  Commissioners  Martin  and  Adelstein  issuing  separate  statements;  Commissioner  Copps  dissenting  and  issuing  a  statement. 


 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that  AMFM  Radio  Licenses,  LLC  (  AMFM),  licensee  of  Station  WIHT(  FM),  Washington,  D.  C.,  apparently  violated  18 


 U.  S.  C.    1464  and  47  C.  F.  R.    73.3999,  by  willfully  broadcasting  indecent  language.  Based  upon  our  review  of  the  facts  and  circumstances  in  this  case,  we  conclude  that  AMFM  is  apparently  liable  for  a 
 monetary  forfeiture  in  the  amount  of  Twenty-  Seven  Thousand  Five  Hundred  Dollars  ($  27,500.00),  the  applicable  statutory  maximum. 


 II.  BACKGROUND 
 2.  The  Commission  received  a  complaint  from  listener  Douglas  Miller  alleging  that  Station  WIHT(  FM)  broadcast  indecent  material  on  September  17,  2002,  between  9:  30  and  9:  45  a.  m.  1 


 The  complainant  alleged  that  the  station  aired  a  contest  on  its  Hot  Morning  Mess  program  that  invited  listeners  to  predict  how  large  a  mans  penis  would  become  after  applying  a  penile-  enlargement  device, 
 and  that  the  broadcast  was  inappropriate  for  airing  during  the  morning  hours.  2  After  reviewing  the  complaint,  the  staff  issued  a  letter  of  inquiry  to  the  licensee.  3 


 1  See  Letter  from  Douglas  Miller  to  Investigations  &  Hearings  Division,  Enforcement  Bureau,  dated  September 
 17,  2002  (  Complaint  Letter). 
 2  See  id. 


 3  See  Letter  of  the  Chief,  Investigations  &  Hearings  Division,  Enforcement  Bureau,  to  AMFM  Radio  Licenses, 
 LLC,  dated  May  27,  2003,  revised  and  resent  by  Letter  of  the  Chief,  Investigations  &  Hearings  Division,  Enforcement  Bureau,  to  AMFM  Radio  Licenses,  LLC,  dated  August  11,  2003  (collectively  the  LOI). 
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 Federal  Communications  Commission  FCC  04-  35 
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 3.  Clear  Channel  Communications,  Inc.  (  Clear  Channel),  AMFMs  corporate  parent,  submitted  a  response  and  included  a  compact  disc  containing  the  complained-  of  program  material.  4  In 
 this  regard,  Clear  Channel  states  that  the  material  in  question  likely  aired  between  the  hours  of  9:  00  and  10:  00  a.  m.  on  September  17,  2002.  5  Clear  Channel  argues  that  the  subject  matter  and  the  language 
 used  in  the  complained-  of  broadcasts  were  not  actionably  indecent.  6  Specifically,  it  contends  that  the  material  broadcast,  in  context,  was  not  patently  offensive  as  measured  by  contemporary  community 
 standards  for  the  broadcast  medium.  7 
 III.  DISCUSSION 
 4.  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,  because  any  consideration  of  government  action  against  allegedly  indecent 
 programming  must  take  into  account  the  fact  that  such  speech  is  protected  under  the  First  Amendment.  8  In  this  regard,  both  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.  9  Thus,  the  First  Amendment  is  a  critical  constitutional  limitation  that  demands 
 that,  in  indecency  determinations,  we  proceed  cautiously  and  with  appropriate  restraint.  10 
 5.  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 


 4  See  Letter  of  Clear  Channel  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications 
 Commission,  dated  August  14,  2003  (  Response).  (In  its  Response,  Clear  Channel  states  that  it  is  the  ultimate  parent  of  AMFM  Radio  Licenses,  LLC.)  The  Bureaus  staff  prepared  a  transcript  from  the  CD  recording 


 submitted  by  Clear  Channel,  which  is  set  forth  at  Attachment  A.  (  Program  Transcript.) 
 5  Response  at  2-  3.  Clear  Channel  does  not  deny  airing  the  contest  in  question  during  Hot  Morning  Mess 
 program,  which  is  broadcast  from  5:  30  to  10:  00  a.  m.,  Monday  through  Friday.  Clear  Channel  represents  that  it  aired  the  show  on  Station  WIHT(  FM)  only,  and  that  the  shows  producer,  Ron  Ross,  recalls  that  the  contest  was 


 scheduled  for  broadcast  at  9:  15  a.  m.,  9:  25  a.  m.,  and  9:  30  a.  m.  on  September  17,  2002.  Clear  Channel  represents  that  the  show  in  question  is  not  syndicated,  is  not  aired  on  any  other  station,  and  that  the  particular  segment  at 
 issue  was  not  provided  to  any  other  radio  station  for  broadcasting.  Id.  at  3. 
 6  Clear  Channel  contends  that  the  station  hosts  were  testing  the  efficacy  of  a  penile-  enlargement  device  called 
 Pump  Him  Up  in  the  context  of  a  consumer  report.  Response  at  4. 
 7  Response  at  3-  5. 


 8  U.  S.  CONST.,  amend.  I;  see  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir.  1988) 
 (  ACT  I). 
 9  See  47  U.  S.  C.    326. 


 10  ACT  I,  852  F.  2d  at  1344  (  Broadcast  material  that  is  indecent  but  not  obscene  is  protected  by  the  First 
 Amendment;  the  FCC  may  regulate  such  material  only  with  due  respect  for  the  high  value  our  Constitution  places  on  freedom  and  choice  in  what  people  may  say  and  hear.)  See  id.  at  1340,  n.  14  (  the  potential  chilling  effect  of 


 the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy.) 
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 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.  11  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.  12  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.  13 


 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.  14  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.  15  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.  16  As  we  set  forth  in  greater  detail  below,  we  conclude  under  this  standard  that  AMFM  is  apparently  liable 
 for  a  forfeiture  for  its  apparent  willful  and  repeated  violations  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 


 11  18  U.  S.  C.    1464. 
 12  See  47  C.  F.  R    73.3999. 
 13  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). 


 14  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.,  (MO&  O),  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. 
 15  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f). 


 16  See,  e.  g.,  SBC  Communications,  Inc.,  (NAL)  (FO),  17  FCC  Rcd  7589,  7591,    4  (2002)(  forfeiture  paid). 
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 7.  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.  17 
 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.  18 


 Clear  Channel  does  not  dispute  that  it  aired  material  describing  or  depicting  a  sexual  organ.  19  That  material,  therefore,  warrants  further  scrutiny  to  determine  whether  or  not  it  was  patently  offensive  as 
 measured  by  contemporary  community  standards  for  the  broadcast  medium.  20 
 8.  In  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  21  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.  22  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.  23  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,  24  or,  alternatively,  removing  the  broadcast  material  from 


 17  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)). 


 18  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). 


 19  AMFM  acknowledges  that  the  product  tested  on  the  HMM  show  involved  a  sexual  organ[.]  Response  at  4. 
 20  The  contemporary  standards  for  the  broadcast  medium  criterion  is  that  of  an  average  broadcast  listener  and 
 with  respect  to  Commission  decisions,  does  not  encompass  any  particular  geographic  area.  See  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    8  and  n.  15. 


 21  Id.  at    9  (emphasis  in  original).  In  this  regard,  in  order  for  us  to  be  in  a  position  to  judge  the  context  of 
 particular  material,  once  a  complainant  makes  a  prima  facie  case,  it  is  appropriate  for  the  staff  to  seek  from  the  licensee  a  tape  or  transcript  not  only  of  the  relevant  material,  but  also  of  a  reasonable  amount  of  preceding  and 


 subsequent  material. 
 22  Id.  at  8002-  15,    8-  23. 


 23  Id.  at  8003,    10. 
 24  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  (continued.) 
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 the  realm  of  indecency.  25  In  this  case,  we  have  examined  all  three  factors  and  have  determined  that  each  weighs  in  favor  of  a  finding  that  the  broadcast  material  was  patently  offensive.  We  note  that,  in  particular, 
 the  stations  presentation  of  the  material  in  a  manner  that  was  pandering,  titillating,  and  shocking  weighs  heavily  in  our  determination.  26  We  turn  now  to  our  analysis  of  the  three  principal  factors  in  our  decision. 


 9.  With  respect  to  the  Indecency  Policy  Statements  first  two  factors,  we  find  that  the  material  dwelled  on  explicit  and  graphic  descriptions  of  male  genitalia.  During  the  broadcasts,  the  Hot 
 Morning  Mess  show  personalities  tested  the  Pump  Him  Up  penile-  enlargement  device  on  a  show  sidekick,  Tim  Teapot  Coburn,  and  discussed  at  length,  and  in  specific  detail,  whether  the  product 
 worked  effectively  in  terms  of  adding  length  and  girth  to  his  penis.  27  Specifically,  the  hosts  placed  a  microphone  in  the  bathroom  that  Mr.  Coburn  occupied  while  attaching  the  device  to,  and  testing  the 
 device  on,  his  penis,  thereby  permitting  the  hosts  to  provide  listeners  with  a  running  commentary  of  Mr.  Coburns  efforts.  28  The  hosts  also  discussed  at  length  how  Mr.  Coburn  was  to  use  a  tape  measure  to 
 determine  the  size  of  his  penis  29  and,  at  one  point,  the  hosts  invited  listeners  to  call  in  and  guess  what  Mr.  Coburns  penile  measurements  would  be  after  the  pumps  use.  30  Although  the  word  penis  was  not 
 aired,  various  common  euphemisms    some  that  could  easily  be  understood  by  children    were  used  instead.  31 


 10.  While  we  do  not  accept  the  argument  that  an  isolated  or  fleeting  broadcast  could  not  be  indecent,  we  need  not  reach  that  issue  here  because  we  find  that  the  hosts  description  of  the  use  of  a 
 penile-  enlargement  device  on  a  mans  genitalia  was  prolonged.  32  We  similarly  reject  Clear  Channels  contention  that  the  hosts  discussions  of  male  genitalia  were  vague  and  euphemistic,  or,  where  more 
 specific,  factually  necessary  in  the  context  of  a  consumer  report.  33  In  this  case,  the  sexual  import  of  the  references,  in  context,  was  inescapable,  and  would  clearly  be  understood  by  the  listening  audience  and 
 (Continued  from  previous  page)  references);  EZ  New  Orleans,  Inc.  (WEZB(  FM)),  12  FCC  Rcd  4147  (MMB  1997)  (forfeiture  paid)  (extremely 
 graphic  or  explicit  nature  of  references  to  sex  with  children  outweighed  the  fleeting  nature  of  the  references). 
 25  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). 
 26  See  id.  at  8010,    20  (citing  Rusk  Corporation  (KLOL(  FM)),  5  FCC  Rcd  6332  (MMB  1990)(  forfeiture  paid) 
 (manner  of  presentation  was  critical  to  indecency  finding);  Jacor  Broadcasting  Corporation  (WEBN(  FM)),  13  FCC  Rcd  4152  (MMB  1997),  affd  13  FCC  Rcd  5825  (MMB  1997)  (forfeiture  paid)  (manner  of  presentation  was 


 critical  to  indecency  finding). 
 27  Program  transcript  at  10-  12,  infra. 


 28  See,  e.  g.,  program  transcript  at  21-  22,  infra. 


 29  See,  e.  g.,  program  transcript  at  10-  11,  infra,  wherein  the  hosts  discussed  the  test-  subjects  genitalia  in  graphic 
 and  specific  terms. 
 30  Id.  at  16,  infra. 


 31  Terms  such  as  pee-  pee,  member,  little  spout,  manhood,  unit,  and  love  muscle  were  used.  Response 
 at  n.  7;  program  transcript  at  10,  11,  14,  15,  16. 
 32  Response  at  4. 


 33  Id. 
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 station  callers  to  have  been  to  the  test-  subjects  sexual  organs.  Moreover,  the  use  of  euphemism  or  innuendo  is  not  a  defense  to  a  finding  of  indecency.  34  We  also  reject  Clear  Channels  contention  that  this 
 material  cannot  be  found  indecent  because  it  was  no  more  graphic  or  less  graphic  than  material  in  cases  where  the  former  Mass  Media  Bureau  did  not  take  enforcement  action.  35  In  support  of  this  argument, 
 Clear  Channel  cites  an  unpublished  internal  staff  memorandum  and  unpublished  staff  decisions  finding  that  certain  material  was  not  actionably  indecent.  36  Even  if  those  cases  could  be  deemed  similar,  to  the 
 extent  that  the  staff  may  have  erred  by  determining  that  the  material  in  those  cases  was  not  indecent,  these  unpublished  decisions  are  not  binding  on  the  Commission.  37  That  is  particularly  the  case  here,  where 
 published  decisions,  including  those  in  the  Indecency  Policy  Statement,  provide  guidance  indicating  that  material  such  as  that  contained  in  this  case  is  indecent.  38 


 11.  The  program  hosts  repeated  vulgar  and  lewd  references  to  male  genitalia,  in  the  context  of  explicit  discussions  of  sexual  arousal  and  masturbation  while  using  the  penile-  enlargement  device,  39 
 were  pandering,  titillating,  or  used  to  shock  the  listening  audience.  In  contrast  to  Commission  precedent  where  broadcasts  were  found  not  indecent  because  sexual  organs  or  activities  were  discussed  in  a  clinical, 
 scientific  or  objective  manner,  the  context  of  the  instant  broadcasts  was  clearly  titillating.  This  is  clear  from  the  extensive  sarcastic  banter  employed  by  the  program  hosts  when  discussing  the  test-  subjects 
 genitalia,  which  did  not  intend  to  make  a  serious  or  clinical  report  concerning  sexual  health  issues.  40  Moreover,  the  fact  that  the  test-  subjects  resulting  penile  measurements,  after  use  of  the  enlargement 
 device,  were  made  the  subject  of  a  call-  in  contest,  belies  any  claim  that  the  material  was  intended  to  be  serious,  clinical  or  instructional  in  nature.  41  These  references,  in  context,  are  similar  to  other  material  that 


 34  See  San  Francisco  Century  Broadcasting,  LP  (KMEL(  FM)),  7  FCC  Rcd  4857  (1992),  affd,  8  FCC  Rcd  498 
 (1993)  (forfeiture  paid)  (where  language  is  clearly  capable  of  a  specific  sexual  meaning,  and  the  context  renders  the  sexual  import  inescapable,  the  use  of  innuendo  is  not  a  bar  to  a  finding  of  indecency). 


 35  See  Memo  from  Thom  Winkler  to  WIOD(  AM)  Complaint  File  (April  21,  1997)  (FCC  Ref.  No.  97010196); 
 Letter  from  Norman  Goldstein,  Chief,  Complaints  and  Political  Programming  Branch,  Enforcement  Division,  Mass  Media  Bureau,  to  Mrs.  Barbara  Onisko  (May  15,  1997)  (FCC  Ref.  No.  94069521);  Letter  from  Norman 


 Goldstein,  Chief,  Complaints  and  Political  Programming  Branch,  Enforcement  Division,  Mass  Media  Bureau,  to  R.  D.  Merkel  (January  23,  1997)  (FCC  Ref.  No.  94110410). 


 36  Id. 
 37  See,  e.  g.,  Amor  Family  Broadcasting  Group  v.  FCC,  918  F.  2d  960,  962  (D.  C.  Cir.  1990),  citing  Homemakers 
 North  Shore,  Inc.  v.  Bowen,  832  F.  2d  408,  413  (7  th  Cir.  1987).  See  also  Lorenzo  Jelks  v.  FCC,  146  F.  3d  878,  881  (D.  C.  Cir.  1998). 


 38  See  n.  43,  infra. 
 39  See,  e.  g.,  n.  28,  supra. 


 40  Compare  King  Broadcasting  Co.  (KING-  TV),  5  FCC  Rcd  2971  (1990)  (where  the  broadcast  of  a  high-  school 
 sex  education  class  was  found  to  be  not  indecent  because  the  material  was  clinical  and  instructional  in  nature)  with  Citicasters  Co.,  15  FCC  Rcd  19095  (EB  2000)  (forfeiture  paid)  (where  discussion  of  sexual  techniques  led  by  sex 


 therapist,  which  included  comments  such  as  oh  yeah,  baby,  was  found  to  be  pandering  and  titillating  and  thus  patently  offensive). 


 41  See  program  transcript  at  16-  19,  infra. 
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 Federal  Communications  Commission  FCC  04-  35 
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 has  been  found  to  be  patently  offensive.  42  In  this  case,  we  find  that  the  program  hosts  extensive  discussion  of  the  penile-  enlargement  device,  and  the  size  of  the  test-  subjects  genitalia,  when  discussed 
 within  the  context  of  a  contest  centering  on  guessing  the  size  of  a  mans  penis,  to  be  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  Accordingly,  we  find  that 
 AMFM  apparently  aired  indecent  material  on  September  17,  2002. 
 IV.  PROPOSED  FORFEITURE 
 12.  Based  on  our  review  of  the  record  in  this  case,  we  conclude  that  AMFM  is  apparently  liable  for  the  willful  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules,  by 


 airing  indecent  programming  on  WIHT(  FM)  on  September  17,  2002.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $7,000  43  for  transmission  of  indecent/  obscene  materials. 
 44  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.  45  In  this  case,  taking  all  of  these  factors  into  consideration,  we  find  that  AMFM  is 
 apparently  liable  for  the  maximum  statutory  forfeiture  amount  of  $27,500.00  for  the  broadcast  of  indecent  material  on  September  17,  2002.  In  particular,  there  is  a  recent  history  of  indecent  broadcasts  on  stations 
 controlled  by  Clear  Channel  Communications,  Inc.,  AMFMs  corporate  parent,  which  justifies  imposition  of  the  maximum  forfeiture  amount.  46  We  reiterate  our  recent  statement  that  multiple  serious  violations  of  our 
 indecency  rule  by  broadcasters  may  well  lead  to  license  revocation  proceedings.  47 


 42  See,  e.  g.,  Entercom  Seattle  License,  LLC  (KNDD(  FM)),  Notice  of  Apparent  Liability,  17  FCC  Rcd  1672  (EB 
 2002),  Forfeiture  Order,  17  FCC  Rcd  18347  (EB  2002)(  application  for  review  pending)  (discussion  as  to  the  capacity  of  the  male  genitalia  to  pull  objects,  as  well  as  references  to  erection,  relative  penis  size  and  to  the 


 anatomical  features  of  the  male  genitalia  was  found  to  be  patently  offensive);  Independent  Group  Limited  Partnership  (WWWE(  AM)),  6  FCC  Rcd,  3711,  3712  (MMB  1990)(  humorous  discussion  of  a  man  with  a  penis  on 
 his  head,  which  is  a  birth  defect);  Goodrich  Broadcasting,  Inc.  (WVIC-  FM),  6  FCC  Rcd  2178,  affd  6  FCC  Rcd  7484  (MMB  1991)(  vulgar,  repeated  and  gratuitous  references  to  sexual  organs  and  activities  in  the  context  of 
 humorous  discussions  concerning  an  allegedly  true  incident  in  which  a  mans  testicle  was  trapped  in  the  drain  of  a  hot  tub);  KFI,  Inc.(  KFI(  AM)),  6  FCC  Rcd  3699,  3700  (MMB  1989)(  discussion  of  the  size  of  the  genitals  of  male 
 celebrities  and  political  leaders,  including  commentary  on  the  size  of  erect  genitals  relative  to  those  that  are  not  erect). 


 43  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). 


 44  Id. 
 45  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17110. 
 46  AMFM  Radio  Licenses,  LLC  (WWDC-  FM),  18  FCC  Rcd  19917  (EB  2003)  (forfeiture  paid);  Citicasters  Co. 
 (KEGL(  FM)),  16  FCC  Rcd  7546  (EB  2001)  (forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  15  FCC  Rcd  19095  (EB  2000)(  forfeiture  paid);  Citicasters  Co.  (KSJO(  FM)),  15  FCC  Rcd  19091  (EB  2000)(  forfeiture  paid). 


 47  See  Infinity  Broadcasting  Operations,  Inc.(  WKRK-  FM),  18  FCC  Rcd  6915,  6919,    13  (2003)  (NAL);  18  FCC 
 Rcd  26360  (2003)  (FO)(  pet.  for  recon.  pending)  before  we  decided  the  WKRK-  FM  case. 
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 Federal  Communications  Commission  FCC  04-  35 
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 13.  We  also  take  this  opportunity  to  note  that  we  could  have  found  AMFM  to  have  engaged  in  apparent  repeated  violations.  The  statute  prohibits  the  broadcast  of  indecent  utter[  ances].  While  the 
 Commission  has  traditionally  viewed  all  of  the  utterances  in  one  program  to  be  a  single  utterance  and  thus  a  single  violation,  such  an  approach  is  not  legally  required.  Here,  for  example,  there  were  several  distinct 
 passages  and  conversations,  each  of  which  could  be  viewed  as  a  separate  indecent  utterance,  and  thus  a  separate  violation.  For  purposes  of  this  proceeding,  we  will  use  our  traditional  per-  program  approach. 
 We  hereby  make  clear  that,  in  the  future,  we  may  treat  situations  like  this  as  multiple,  repeated  violations  with  the  accompanying  increase  in  forfeitures. 


 V.  ORDERING  CLAUSES 
 14.  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,  48  that  AMFM  Radio  Licenses, 


 L.  L.  C.  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. 
 15.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  that  within  thirty  days  of  the  release  of  this  Notice,  AMFM  Radio  Licenses,  L.  L.  C.  SHALL  PAY  the  full 


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


 16.  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)  referenced  above  and  also  must  note  the 
 NAL/  Acct.  No.  referenced  above. 
 17.  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  DC  20554  and  MUST  INCLUDE  the  NAL/  Acct.  No.  referenced  above. 
 18.  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. 


 19.  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.  49 
 20.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  shall  be  sent,  by  Certified  Mail/  Return  Receipt  Requested,  to  AMFM  Radio  Licenses,  L.  L.  C.,  2625  S.  Memorial  Drive,  Suite  A, 


 48  47  C.  F.  R.    1.80. 
 49  See  47  C.  F.  R.    1.1914. 
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 Federal  Communications  Commission  FCC  04-  35 
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 Tulsa,  Oklahoma  74129,  with  a  copy  to  its  counsel,  Dorann  Bunkin,  Esq.,  Wiley,  Rein  &  Fielding,  LLP,  1776  K  Street,  N.  W.,  Washington,  D.  C.  20006. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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 Federal  Communications  Commission  FCC  04-  35 
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 ATTACHMENT  A 
 Radio  Station:  WIHT(  FM),  Washington,  D.  C. 
 Dates/  Time  of  Broadcasts:  September  17,  2002,  between  9:  15  and  9:  45  a.  m. 


 Material  Broadcast:  The  Hot  Morning  Mess  Show 
 Mark  --  Mark  Kaye  Teapot  --  Tim  Coburn 
 Kris  --  Kris  Gamble 


 Track  #1 
 Mark:  Hi,  speaking  of  greatness,  Teapot  Tim  is  about  to  do  another  consumer  report.  Today  Teapot  what  are  you  testing? 


 Teapot:  Today  Im  testing  the  Pee  Pump. 
 (Laughter) 
 Mark:  The  pee-  pee  pump.  We  got  the  male-  inflation  devise,  with  extended  use  or  regular  use.  And  it  actually  enlargens  (sic)  your  member. 


 Kris:  Enlargens  (sic). 
 Mark:  Enlargens  (sic),  enlarges.  Exactly  enlarges  memberism  (sic). 
 Kris:  Enlarges  your  member  unit. 
 Mark:  Ah,  so  Teapot  is  gonna  test  this.  First  of  all,  Im  gonna  take  a  measurement  of  him  before  pumping  and  then  a  measurement  after. 


 Teapot:  All  righty. 
 Mark:  Have  you  ever  measured  yourself?  Do  you  know  what,  what  your  average  inches  is? 
 Teapot:  Yes,  I  do. 
 Kris:  You  do. 
 Mark:  You  do,  what  is  it? 
 Teapot:  Its  about  six,  six  and  a  half. 
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 Kris:  Thats  aroused,  thats  not  flaccid? 
 Teapot:  Ive  never  measured  the  girth. 
 Mark:  Youve  never  measured  the  girth.  We  have  a  tape  measure,  right  Kris? 
 Kris:  We  certainly  do,  I  made  a  tape  measure. 
 Mark:  Out  of  duct  tape.  Truly  a  tape  measure,  perfect  for  Teapot.  Weve  put  a  microphone  in  the  bathroom. 


 Teapot:  Okay. 
 Mark:  If  youll  wander  in  there,  lets  get,  go  ahead  and  get  a  preliminary  measurement. 
 Teapot:  Okay.  You  want  me  to  measure  it  non-  excited. 
 Mark:  Right,  were  gonna  measure  it  non-  excited. 
 Teapot:  Okay. 
 Mark:  Wholl  do  the  regular,  run-  of-  the-  mill  Teapot,  the  spout,  the  unexcited  spout? 
 Kris:  Are  you  gonna  be  embarrassed  to  tell  us? 
 Teapot:  No. 
 Mark:  This  is  so  no  good;  no,  this  is  good. 
 Kris:  Why  is  this  not  good? 
 Mark:  Teapot,  can  you  hear  us? 
 Teapot:  Yeah,  I  can  hear  you. 
 Kris:  I  think  its  important  for  all  men  all  over  the  place  to  know  that  the  average  is  actually  pretty  small. 


 Mark:  Im  gonna  tell  you,  if  any  men  are  like  me  and  I'm  pretty  sure  a  lot  of  women  are  too,  that  didnt  sound  right,  but  youre  very  curious  to  see  what  this  thing  does. 
 Kris:  Im  extremely  curious. 
 Mark:  Ever  since  I  saw  the  first  Austin  Powers  movie,  Ive  been  like,  ah,  boy  I  wonder  what  that  would  be  like. 


 Kris:  Thats  not  my  bag,  baby. 
 Mark:  Okay,  Teapot,  drop  you  drawers  for  us. 
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 Federal  Communications  Commission  FCC  04-  35 
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 Teapot:  Okay,  here  we  go. 
 Mark:  It  does  look  just  like  the  one  in  Austin  Powers.  Is  Leslie  there  taking  pictures? 
 Teapot:  Hey  there  little  guy. 
 (Laughter  from  male  and  female) 
 Kris:  Oh,  my  God. 
 Mark:  Laughter. 
 Teapot:  [Inaudible.]  So  you  are  the  one. 
 Kris:  Dont  talk  to  it,  it  might  jump  up  and  bite  you. 
 Mark:  Okay,  Teapot,  lets  get  a  length  measurement. 
 Teapot:  Oh,  my  God,  he  cant  come  in,  Im  naked. 
 Kris:  I  have  to  take  pictures. 
 Teapot:  Okay,  we  have  four  inches. 
 Mark:  Okay,  youre  not  pulling  on  it  or  tugging  on  it  are  you  or  anything,  youre  just  letting  it  hang? 


 Teapot:  No. 
 Mark:  Leslie,  is  he  just  letting  it  hang? 
 Leslie:  Yeah. 
 Mark:  Is  he  measuring  from  like,  his  belly  button  or  something? 
 Leslie:  I  dont  know.  Da,  uh,  da  uh,  laughter.  That  sounded  kinda  low.  Are  you  sure  its  four? 
 Teapot:  You  wanted  me  to  measure  the  girth,  right? 
 Mark:  No,  we  want  you  to  measure  the  length,  from  tip  to  tip. 
 Teapot:  Oh. 
 Mark:  Thats  okay. 
 Kris:  I  knew  he  had  something  wrong. 
 Teapot:  Three  inches. 
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 Federal  Communications  Commission  FCC  04-  35 
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 Mark:  Okay,  thats  more  like  it. 
 Kris:  Thats  more  like  it. 
 Mark:  Thats  the  Teapot  we  know  and  love. 
 [Female  laughter] 
 Mark:  Alright,  now  Teapot,  take  the  tape  measure. 
 [Female  laughter] 
 Teapot:  Uh,  huh. 
 Mark:  Now  wrap  it  around  and  measure  the  width. 
 [Female  laughter.] 
 Teapot:  Thats  four  inches. 
 Kris:  The  girth  was  four;  thats  the  circumference--  four. 
 Mark:  Really,  he  already  took  the  circumference?  Wow. 
 Kris:  Hes  got  a  fat  little  thing. 
 Mark:  His  thing  is  three,  the  width  of  this  is  actually  [inaudible].  He  got  Fat  Joe  and  Asshanti.  Okay,  alright.  What  were  gonna  do  now,  Teapot? 


 Kris:  Dont  crack  the  door! 
 Mark:  Go  ahead,  you  I  have  the  pump  right  here,  so  were  gonna  have  to  give  that  to  you. 
 Kris:  Alright. 
 Mark:  Lets  take  a  quick  break.  Uh,  when  we  get  back,  Teapot,  Tim  will  pump  him  up  and  well  see  how  much  farther  we  can  go. 


 Mark:  Its  currently  three  inches,  four  inches  around. 
 Kris:  Right 
 Mark:  [Laughter.] 
 Kris:  Its  almost  as  fat  as  it  is  long. 
 Mark:  [Laughter.] 
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 Federal  Communications  Commission  FCC  04-  35 
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 Kris:  Is  it  square? 
 Mark:  You  know,  its  like  when  you  buy  pants  and  the  waist  is  bigger  than  the  length,  its  too  embarrassing! 


 Kris:  Ah,  thats  embarrassing. 
 Mark:  Anyway,  like  34,  32. 
 Kris:  Ouch.  Oh,  God! 
 Mark:  Well  be  right  back,  this  is  the  Hot  Morning  Mess  with  Mark  &  Kris. 
 [Laughter.] 


 Track  #2 
 Mark:  Alright,  ladies  and  gentlemen,  we  have  Teapot  Tim  in  the  bathroom.  Tim  are  you  there? 
 Teapot:  Yes,  Im  here. 
 Mark:  Okay,  you  just  took  measurements  of  this  little  spout. 
 Kris:  Right,  Teapots  spout. 
 Mark:  And  it  measures  three  inches  long,  right? 
 Teapot:  Right. 
 Mark:  And  four  inches  around? 
 Teapot:  Correct. 
 Mark:  Okay,  and  thats  totally  unexcited,  uninterested.  Its  like  its  been  listening  to  the  show  all  morning. 


 Kris:  Just  like  our  listeners. 
 Mark:  Ah,  alright,  good.  Now  what  were  gonna  do  is,  we  have  this  pump  that  we  got  from  our  friend  Stacy,  at  Stacys  Treasures. 


 Kris:  Right. 
 Mark:  And  were  going  to  pump  Teapot  up.  Were  gonna  pump  (hands  clapped),  him  up. 
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 Federal  Communications  Commission  FCC  04-  35 
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 Kris:  Alright. 
 Mark:  Or  hes  going  to  pump  himself  up.  Now  this  thing  supposedly  when  you  stick  it  on  your  thingee  and  start  pumping,  Teapot  pump  it  in  the  microphone  so  we  can  hear  it. 


 [Sound  of  pump  operating.] 
 Mark:  Yeah. 
 Kris:  Sounds  like  a  little  blood  pressure  thing. 
 Mark:  A  stigmomidometer  (sic). 
 Kris:  Thats  right. 
 Mark:  It  like,  ah,  its  got  one  of  those  little  things  on  it  and  a  large  red  tube  that,  ah,  slides  over. 
 Kris:  Uh  huh. 
 Mark:  Your  spout. 
 Kris:  Uh  huh. 
 Mark:  Ah,  so  Teapots  gonna  start  pumping  himself  to  (a)  get  him  bigger,  longer;  and  (b)  with  extended  use,  everyday  use,  increase  the  size. 


 Kris:  Right,  its  like  exercise.  Youre  supposed  to  do  exercise  everyday  to  make  things  bigger  and  harder. 
 Mark:  Thats  exactly  right. 
 Kris:  Like  your  muscles. 
 Mark:  Exactly  right. 
 Kris:  Well  this  is  exercise  for  his  little  muscle. 
 Mark:  For  the  love  muscle. 
 Kris:  Thats  right,  for  the  love  spout. 
 Mark:  Alright  now,  Teapot? 
 Teapot:  Yeah. 
 Mark:  Have  you  ever  measured  yourself  before? 
 Teapot:  Yes. 
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 Federal  Communications  Commission  FCC  04-  35 
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 Mark:  You  have?  Okay,  so  you  have  a  pretty  good  .  .  .  . 
 Teapot:  Yes. 
 Mark:  idea  in  your  head  of  whats  going  to  happen.  .  .  .[  laughter]  in  your  head.  Tell  you  what  were  going  to  do,  were  going  to  turn  this  into  a  little  contest,  cause  this  could  be  kinda 
 fun.  Teapots  gonna  pump  himself  up  and  well  see  how  long  and  how  big  around  it  gets. 
 Kris:  Okay. 
 Mark:  How  big  will  he  be.  Its  Hot  Morning  Mess  with  Mark  and  Kris. 


 [Break  in  programming.] 


 Track  #3 
 Mark:  Right  now  ladies  and  gentlemen,  its  back  to  the  bathroom  where  Teapot  Tim  is,  ah,  hanging,  ah,  about.  Whats  going  on  Teapot? 


 Teapot:  Yo,  yo,  yo. 
 Mark:  Hows  your  little  spout  doing? 
 Teapot:  Its  doing  alright. 
 Kris:  Are  you  having  stage  fright? 
 Mark:  Little  bit.  Teapot  Tim  has  ah,  just  measured  his  manhood,  his  little  spout  and  what  were  gonna  do  is  test  out  today  for  our  consumer  report  the  Pump  Him  Up,  ah,  Pee-  Pee 
 Pump.  See  how  big  it  actually  gets.  We  have  some  people  on  the  line  that  want  to  take  a  guess.  The  starting  size  is  three  inches  long,  four  inches  around. 


 Kris:  Right. 
 Mark:  Well  take  some  guesses  and  whoever  gets  closest  to  what  we  can  get  it,  without  going  over  gets  what,  Kris  Gamble. 


 Kris:  Weve  got  a  four-  pack  of  tickets  to  see  The  Top  10  American  Idol  in  concert  here  on  November  3  rd  . 
 Mark:  Fantastic,  lets  start  with  Ben.  Hey,  Ben,  where  you  calling  from? 
 Ben  Im  calling  from  the  Lord  &  Taylor  parking  lot  in  Fair  Oaks. 
 [Laughter.] 
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 Federal  Communications  Commission  FCC  04-  35 
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 Mark:  Whacha  doing  in  the  parking  lot,  I  wonder? 
 Ben  Uh,  Im  getting  ready  to  go  into  work. 
 Mark:  Uh,  okay,  good.  Well  hand  tight  just  a  couple  of  more  minutes.  Tell  us  quickly  how  long  do  you  think  Teapots  gonna  get?  Hes  currently  three  long,  four  around. 


 Ben:  Well,  um,  my  guess  is  hes  gonna  get  up  to  eight  inches  and  five  around. 
 Mark:  Wow,  whoa,  have  you  used  one  of  these  yourself  before? 
 Ben:  Well,  kinda,  yes. 
 Kris:  Oh,  so  he  has  the  inside  track  my  friends.  Bens  gonna  .  .  .  . 
 Kris:  Alright,  right,  wow  five. 
 Mark:  Fantastic.  Hang  on,  Ben.  Joyce  from  D.  C. 
 Joyce:  Yes,  hi. 
 Mark:  Hey,  Joyce,  whats  your  guess,  how  long,  how  big  around? 
 Joyce:  Four  long,  five  wide.  I  dont  think  its  going  to  work. 
 Mark:  Oh  you  dont  think  its  going  to  work,  just  an  inch  on  either  side? 
 Joyce:  Thats  it. 
 Kris:  Wow. 
 Mark:  Hang  on;  well  see.  Hey,  ah,  Debbie  from  Bowie. 
 Debbie:  Hey. 
 Mark:  Hey,  Debbie,  what  do  you  think,  length  and  width? 
 Debbie:  Barring  any  stage  fright,  seven;  five  and  one-  half. 
 [Laughter.] 
 Mark:  Seven;  five  and  one-  half. 
 [Laughter.] 
 Kris:  Barring  stage  fright,  an  excellent,  ah,  you  know,  thing  there. 
 Mark:  Yeah,  no  kidding.  Just  a  couple  more,  alright.  Michelle  from  Arlington. 
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 Michelle:  Yes,  five  long  and  six  wide. 
 Mark:  Five  long  and  six  wide. 
 Kris:  Oh,  ugh,  uh,  hed  be  wider  then  he  is  long.  Thats  weird! 
 Mark:  Alright,  well  see  what  happens. 
 Male  Voice:  Thats  a  soup  can. 
 Mark:  Soup-  can  Tim. 
 Kris:  Push  me--  you  have  a  soup  can  in  your  pants! 
 Male  Voice:  Hes  just  happy  to  see  me. 
 Mark:  And  finally  this  is  Dana.  How  you  doing,  Dana? 
 Dana:  Fine. 
 Mark:  What  are  you  thinking? 
 Dana:  Seven  and  one-  half  long  and  five  wide. 
 Mark:  Seven  and  one-  half  long  and  five  wide. 
 Dana:  Right. 
 Mark:  Alright,  hang  on,  dear. 
 Dana:  Oh,  alright. 
 Mark:  So  heres  what  we  got.  Ben,  whos  eight  and  five;  Joyce  whos  four  and  five;  Debbie  whos  seven  and  five  and  one-  half;  Michelle  whos  five  and  six. 


 [Female  laughter.] 
 Mark:  And  Dana,  whos  saying  seven  and  one-  half  and  five.  Alright,  Teapot,  are  you  there? 
 Teapot:  Yup. 
 Mark:  You  ready  to  go? 
 Teapot:  Yes,  lets  do  it. 
 Mark:  Slide  the  sucker  on.  Is  it  in  place? 
 Teapot:  No,  I  gotta  take  my  pants  down. 
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 Mark:  Oh  yeah,  thats  a  good  idea. 
 Kris:  Well,  he  didnt  want  to  stand  around  in  there  with  Leslie  with  pants  around  his  ankles. 
 Mark:  Okay,  are  you  in  place? 
 Teapot:  Yup. 
 Mark:  Alright  then,  slide  the  unit  on  the  unit.  Okay,  youre  ready? 
 Teapot:  Yup. 
 Mark:  On  you  mark,  get  set,  ah,  pump  em  up. 
 Kris:  I  hear  pumping. 
 Mark:  Teapot?  Teapot? 
 Teapot:  You  guys  there? 
 Kris:  Oh,  they  made  a  page  out  of  your  office  and  our  radio  station  goes  off  in  there. 
 Mark:  Okay,  lets  try  again. 
 Kris:  Start  pumping. 
 Mark:  Hang  on,  dont  yet. 
 Teapot:  Okay. 
 Male  Voice:  That  was  anti-  climactic. 
 Mark:  Okay,  on  your  mark,  get  set,  start  pumping.  [Pumping  sound  in  background  with  theme  to  the  movie  Rocky  playing.] 


 Kris:  There  we  go,  a  little  false  start. 
 Mark:  Do  you  feel  anything? 
 Teapot:  Not  really. 
 Kris:  Give  it  a  minute. 
 Teapot:  I  think  I  need  to  push  on  it  harder  to  get  the,  uh,  seal. 
 Mark:  Ah,  yeah. 
 Kris:  Yeah  you  need  it  air-  tight  against  your  body. 
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 Mark:  Yeah,  yeah. 
 Teapot:  Okay,  oh,  now  Im  starting  to  feel  it. 
 [Background  clapping  and  laughter  heard.] 
 Mark:  Okay,  Teapot,  think  wonderful  thoughts,  too.  Close  your  eyes  and  dream  of  whatever  you  dream  of. 


 Teapot:  (Moaning.)  Ah,  yeah. 
 Kris:  Dont  be  a  pig. 
 Mark:  Yuck. 
 Kris:  Bad  enough  youre  doing  this,  you  dont  need  to  embellish. 
 Mark:  Keep  going  until  you  think  you  cant  go  any  further. 
 Teapot:  Okay. 
 Male  Voice:  Ouch. 
 Mark:  We  dont  want  any  explosions  in  there,  please. 
 Kris:  Yeah,  I  know--  no  ruptures. 
 Male  Voice:  Dont  rupture  any  blood  vessels  or  anything. 
 Mark:  Hows  it  going? 
 Teapot:  [Groan.]  Its  not  getting  any  bigger. 
 Mark:  Are  you  pumping,  do  you  have  a  nice  air-  tight  seal? 
 Teapot:  Yes,  I  do.  And  its  pulling  on  it,  but  its  not  getting  any  bigger. 
 Kris:  Like  a  bad  date. 
 Mark:  Can  you  see  it  or  you  just  know? 
 Teapot:  I  can  just  feel,  you  know,  you  know. 
 Kris:  No,  thats  the  problem,  we  dont. 
 Mark:  Alright,  tell  you  what,  pump  like  for  maybe  30  more  seconds. 
 Teapot:  Yeah,  okay. 
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 Mark:  Really  give  it  your  all. 
 Teapot:  [Grunting  sounds.] 
 Kris:  Are  you  thinking  nice  thoughts? 
 Teapot:  I  am  trying  to. 
 Mark:  But  dont  let  use  distract  you  in  any  way. 
 Teapot:  Talk  to  me,  Kris. 
 Kris:  Ugh. 
 Mark:  Yeah,  talk  dirty  to  him,  Kris. 
 Kris:  No,  you  do. 
 Mark:  No,  come  on.  Tell  him  about  your  breasts. 
 Kris:  No,  you  do  it. 
 Teapot:  My  hands  never  been  this  tired. 
 Mark:  [Laughter.]  Yeah,  right. 
 Kris:  Cause  it  happens  so  quickly. 
 [Buzzer  sound.] 
 Mark:  I  dont  believe  that  for  a  second.  Okay,  Teapot,  ten  seconds. 
 Teapot:  Okay. 
 Mark:  Four,  three,  two  one.  Okay,  ah,  please  remove  the  Pump  Him  Up  unit. 
 Teapot:  Okay. 
 Mark:  And  take  a  measurement.  Ah,  first  the  length. 
 Teapot:  The  length  is  three  inches.  [Sound  of  bell  ringing.] 
 Mark:  And  what  is  the  girth? 
 Teapot:  The  girth  is  four  inches.  [Sound  of  bell  ringing.] 
 Mark:  Excellent. 
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 Male  Voice:  So  we  got  absolutely  no  growth. 
 Mark:  In  other  words,  it  doesnt  work.  Hey,  Joyce.  .  .  . 
 Kris:  It  shrank. 
 Mark:  Hey,  Joyce. 
 Joyce:  Yeah? 
 Mark:  You  said  it  wasnt  gonna  work.  So,  Ill  give  him  an  inch. 
 Kris:  Im  curious  to  know  if  he  has  to  be  excited  first. 
 Mark:  I  dont  know,  man. 
 Kris:  I  think  that  may  be  the  way  it  works. 
 Mark:  Wow,  maybe. 
 Mark  Hot  Morning  Mess  with  Mark  and  Kris. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS,  DISSENTING 
 Re:  AMFM  Radio  Licenses,  L.  L.  C.,  Licensee  Station  WIHT(  FM),  Washington,  D.  C. 
 In  this  case,  the  Commission  adopted  a  Notice  of  Apparent  Liability  against  Clear  Channel  for  violating  the  statutory  prohibition  against  broadcasting  indecent  material.  The  Commission  subsequently 
 learned  that  the  statutory  deadline  had  passed  last  fall  when  the  stations  license  was  renewed.  This  case  highlights  the  need  to  address  complaints  filed  with  the  Commission  expeditiously. 


 In  addition,  I  have  been  calling  for  the  Commission  to  establish  an  effective  license  renewal  process  under  which  the  Commission  would  once  again  actually  consider  the  manner  in  which  a  station 
 has  served  the  public  interest.  One  aspect  of  that  consideration  should  include  complaints  filed  by  the  public.  It  is  unfortunate  that  in  this  instance  a  license  was  renewed  while  a  pending  complaint  remained 
 unaddressed.  Going  forward,  the  Commission  should  not  only  ensure  that  all  complaints  have  been  addressed  before  a  license  is  renewed,  but  we  should  also  conduct  a  more  thorough  examination  of  how 
 stations  are  meeting  their  public  interest  responsibilities  over  the  term  of  their  licenses. 
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 STATEMENT  OF  KEVIN  J.  MARTIN 
 Re:  AMFM  Radio  Licenses,  L.  L.  C.,  Licensee  of  Station  WIHT(  FM),  Washington,  DC,  Notice  of  Apparent  Liability  For  Forfeiture  (adopted  February  20,  2004) 


 After  we  adopted  this  item  (which  we  had  received  from  the  Bureau  less  than  a  month  before),  we  were  informed  that  the  statute  of  limitations  had  run  last  year.  As  a  result,  we  cannot  enforce  the  fine  this 
 item  imposes.  The  Commission  must  begin  acting  in  a  timely  fashion  so  that  we  can,  literally,  enforce  our  rules. 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  AMFM  Radio  Licenses,  L.  L.  C.,  Licensee  of  Station  WIHT(  FM),  Washington,  DC;  Notice  of  Apparent  Liability  for  Forfeiture 
 It  is  unfortunate  that  after  the  Commissioners  promptly  voted  this  item,  we  were  made  aware  that  the  statute  of  limitations  had  run.  We  should  not  let  unnecessary  delay  deprive  us  of  the  ability  to  meet 
 our  obligation  to  enforce  statutory  and  regulatory  provisions  restricting  broadcast  indecency. 
25