FCC 94-26 Federal Communications Commission Record 9 FCC Red No. 8 The Commission today issued a Notice of Apparent Li Before the ability (NAL) to Americom Las Vegas Ltd. Partnership, Federal Communications Commission licensee of Radio Station KFBI(FM), Pahrump, Nevada, for Washington, D.C. 20554 violation of 18 U.S.C. Section 1464 by its broadcast on September 30, October 6 and October 12, 1993 of certain apparently indecent material contained in the "Howard LETTER Stern Show". 1 Based on our experience and your acknowl January 31, 1994 edgements in prior similar circumstances, we presume that the material aired by KFBI(FM) was also aired by the four above-captioned stations on the same dates as noted above Released: February 1, 1994 and at a time of day between 6:00 a.m. and 10 a.m.2 The Commission has also received information indicating that CERTIFIED MAIL, RETURN RECEIPT REQUESTED Station WXRK(FM), New York, New York, may have fur ther violated 18 U.S.C. Section 1464 by its broadcast of Mr. Mel Karmazin, President certain apparently indecent material during the "Howard Stern Show" on August 4, 1993.3 Transcripts of the alleg Infinity Broadcasting Corporation edly indecent broadcasts, taken from transcripts and tapes submitted by the complainants, are attached. Licensee of Radio Station WJFK(AM) Pursuant to 47 U.S.C. Sections 312(a)(6) and Baltimore, Maryland 503(b)(l)(D), the Commission has statutory authority to take appropriate administrative action when licensees broadcast material in violation of 18 U.S.C. Section 1464, Controlling parent of: which provides criminal penalties for anyone who "utters any obscene, indecent or profane language by means of Sagittarius Broadcasting Corporation radio communication." Licensee of Radio Station WXRK(FM) The Commission has defined indecency as language or material that, in context, depicts or describes "in terms New York. New York patently offensive as measured by contemporary commu nity standards for the broadcast medium, sexual or ex Infinity Broadcasting Corporation of Pennsylvania cretory activities or organs." Infinity Broadcasting Licensee of Radio Station WYSP(FM) Corporation of Pennsylvania, 2 FCC Red 2705, 2705 (1987) (citing Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff©d Philadelphia, Pennsylvania sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). The United States Court of Appeals for the District of Infinity Broadcasting Corporation of Washington, Columbia Circuit has upheld the Commission©s authority D.C. to restrict the broadcast of indecent material at times of day when there is a reasonable risk that children may be in the Licensee of Radio Station WJFK(FM) audience. Action for Children©s Television v. FCC, 852 F.2d Manassas, Virginia 1332 (D.C. Cir. 1988). The excerpts from the "Howard Stern Show" reflected in 600 Madison Avenue, Fourth Floor the attached transcripts appear to be indecent in that they New York, New York 10022 contain language that describes sexual and excretory activi ties and organs in patently offensive terms. Moreover, be Dear Mr. Karmazin: cause the material aired at times when there was a reasonable risk that children may have been in the au dience (between approximately 6:00 a.m. and 10:00 a.m.), This letter constitutes a NOTICE OF APPARENT LI it is legally actionable. Thus, it appears that on August 4, ABILITY FOR A FORFEITURE to the four above-named September 30, October 6 and October 12, 1993. Infinity licensees (collectively referred to as "Infinity") in the ag violated 18 U.S.C. Section 1464 by airing indecent pro gregate amount of Four Hundred Thousand Dollars gramming on each of the four above-referenced stations. ($400,000), pursuant to Section 503(b) of the Communica tions Act of 1934, as amended. We have determined that the appropriate remedy for the apparent violations noted here is a monetary forfeiture.4 Accordingly, pursuant to Section 503(b) of the Commu nications Act of 1934, as amended, Sagittarius Broadcasting 1 Americom Las Vegas, Ltd. Partnership, FCC 44-25 (adopted 3 Because our experience in prior enforcement proceedings January 31, 1994). involving Infinity indicates that material aired during the 2 See, e.g., Infinity Broadcasting Corporation, 8 FCC Red 6740 "Howard Stern Show" as broadcast by WXRK(FM) is also aired (1993) (in responding to a letter of inquiry from the Commis by the other above-captioned Infinity stations, we presume for sion as to whether Infinity©s stations had aired the same Howard purposes of our action here that WYSP(FM), Philadelphia, Stern Show material that had been aired by KFBI(FM), Infinity Pennsylvania; WJFK(FM), Manassas, Virginia; and WJFK(AM), stated "it can be assumed that the substance of these shows was Baltimore, Maryland, also carried the August 4, 1993 broadcast also broadcast by WXRK(FM), WYSP(FM) and WJFK(AM and between approximately 6:00 a.m. and 10:00 a.m. FM) on those dates ... [and] would have been aired by the 4 See By Direction Letter to Steven A. Lerman (Assignment of aforementioned Infinity stations from approximately 6:00 a.m. License of KRTH(FM), Los Angeles, CA), FCC 94-24 (adopted to approximately 10:00 a.m." Id.). January 31, 1994). 1746 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-26 Corporation, Infinity Broadcasting Corporation of Penn sylvania, Infinity Broadcasting Corporation of Washington, D.C., and Infinity Broadcasting Corporation, licensees of HS: Come on baby, you know you want to hear some stations WXRK(FM), New York, NY; WYSP(FM), Philadel dirty talk. phia, PA; WJFK(FM), Manassas, VA; and WJFK(AM), Bal timore, MD, respectively, are hereby each notified of their RQ: Well I think it©s very impressive that you went separate apparent liability for a forfeiture of One Hundred home and had sex in the middle of the week. Thousand Dollars ($100,000) for their apparent willful and HS: Oh yes, oh yes. It©s the new Howard Stern. I was repeated violations of 18 U.S.C. Section 1464 on the dates so happy yesterday. set forth above. RQ: And, and I would say. In determining the amount of these forfeitures, we find that the same exacerbating considerations concerning Infin HS: That©s my wife. I got to call my wife. ity©s history of apparent misconduct reviewed in assessing RQ: It©s your fault that you©re not having sex then. prior forfeitures against Infinity are applicable here. See Infinity Broadcasting Corporation, 8 FCC Red 2688, 2689-90 HS: That©s right. and n.3. (1992); Infinity Broadcasting Corporation, 8 FCC RQ: She was perfectly willing. Red 6740, 6741 (1993). As in the earlier actions, we have HS: And she couldn©t believe, she was completely continued to take account here of the various relevant lubricated. factors set forth in Section 503(b)(2) of the Communica tions Act of 1934, as amended, and reflected in our Policy RQ: (Laughs) Statement on Standards for Assessing Forfeitures, 8 FCC Red HS: Hey, she went for the K-Y jelly, I said you don©t 6215 (1993), appeal pending sub nom. USTA v. FCC, Case need that baby. You don©t even need it. Come back No. 92-1321 (D.C. Cir. July 30, 1992). here. She got her period. In regard to this forfeiture proceeding, you are afforded a RQ: What? period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be HS: She got her period. imposed or should be reduced, or to pay the forfeiture. RQ: And you did anyway? Any showing as to why the forfeiture should not be im posed or should be reduced shall include a detailed state HS: No, no, no she had her period a couple of days ment and such documentation and affidavits as may be ago so I knew she was ready. pertinent." 47 C.F.R. Section 1.80(f)(3). Other relevant RQ: Oh. provisions of Section 1.80 of the Commission©s Rules are HS: Without K-Y. summarized in the attachment to this letter. This letter was adopted by the Commission on January RQ: Oh, I see what you©re saying. 31, 1994. HS: And she was, she was shocked, she goes, boy you know your women, I was ready. I was ready without BY DIRECTION OF THE COMMISSION K-Y. Ask my wife how good a mood I was over this Imus thing yesterday? Hey honey, hey, I mean, Gary get my honey on the phone. RQ: Maybe you should thank him. HS: Yeah, she was sloppy and ready. Mm. Then I William F. Caton had her down in the gym with my personal trainer Acting Secretary Jonathon, working her out so she©ll get back to the shape she was in. Attachments RQ: You mean you worked her out. *Chairman Hundt not participating; Commissioners HS: Yeah, get back to the shape that she was in. She was all nervous. Quello and Barrett concurring in the result. She was afraid Jonathon would smell the love on Radio Stations: WXRK-FM, New York, NY; her. But I cleaned her up with, sprayed her down. WYSP-FM, Philadelphia, PA; She goes, the trainer is going to smell me. So I go, so WJFK-FM, Manassas, VA; let him smell you. That©s the smell of love. Every guy WJFK-AM, Baltimore, MD loves that. Time Broadcast: Between approximately 6:00 and 11:00 a.m. RQ: That©s a good smell. Material Broadcast: Howard Stern Show HS: That©s a good smell. There©s enough bad smelling things in this world, that©s a good smell.