******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Liability of L.M. Communications ) of South Carolina, Inc., ) ) Licensee of Radio Station ) WYBB(FM), Folly Beach, SC ) ) for a Forfeiture ) MEMORANDUM OPINION AND ORDER Adopted: June 12, 1998 Released: June 16, 1998 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief of the Mass Media Bureau acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, has under consideration (1) a $3,750 Notice of Apparent Liability (NAL) issued February 24, 1992, to L.M. Communications of South Carolina, Inc., licensee of Station WYBB(FM), Folly Beach, South Carolina; and (2) the licensee's response to the NAL dated March 19, 1992, asking that no forfeiture be imposed. For the reasons that follow, we have recalculated the forfeiture and reduced it to $2,000. 2. The NAL was issued for apparent violation of 18 U.S.C.  1464, which prohibits the broadcast of "any obscene, indecent or profane language by means of radio communication." Pursuant to Sections 312(a)(6) and 503(b)(1)(D) of the Communications Act, the Commission has statutory authority to take appropriate administrative action when licensees broadcast material in violation of 18 U.S.C.  1464. The Commission has defined indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. See Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987). The United States Court of Appeals for the District of Columbia Circuit has upheld the Commission's authority to restrict the broadcast of indecent material at times when there is a reasonable risk that children may be in the audience. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996); Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988). 3. The offending material in this case was broadcast at approximately 9 a.m. during "The Morning Show" of August 8, 1990. A transcript was appended to the NAL but for convenience it is repeated here: Voice 1: (Unintelligible) Maybe it's nine. Voice 2: I don't know and who really gives a crap? Voice 1: Oh, oh. Voice 2: No, we can say crap. Voice 1: We can say crap? Voice 2: Yeah. Voice 1: Crap, crap, crap, crap, crap, crap. Voice 2: That's right, just can't say shit. Voice 1: Oh, then we won't. Voice 2: That's right. 4. The licensee responds to the NAL in large part by reiterating arguments we have already addressed and rejected in the NAL. Among other things, the licensee again contends that the questionable language was merely a fleeting, isolated, and incidental occurrence within unscripted and completely spontaneous live programming. It argues that this broadcast was analogous to, yet less offensive than, certain material described in Pacifica Foundation Inc., 2 FCC Rcd 2698 (1987), against which the Commission took no action. The licensee also argues that the language at issue does not constitute indecency because, "considered in context, [it] was neither descriptive nor patently offensive." 5. We continue to believe that the broadcast in question fits our definition of indecency and warrants a monetary sanction. While the broadcast that escaped Commission sanctions in Pacifica, supra, may have contained a larger number of potentially offensive terms than the relevant portion of the August 8, 1990 "Morning Show" on WYBB(FM), the circumstances are distinguishable. The Pacifica broadcast carried the live, spontaneous, and unpredictable delivery of a play by actors who were not employees of the station. In contrast, the WYBB(FM) broadcast was delivered by the station's own employees who, while speaking extemporaneously, did so in a manner which steadily and predictably led to a punchline which emphasized and highlighted offensive language. Moreover, unlike the Pacifica broadcast, the context of the WYBB(FM) broadcast is available as a basis upon which to make a determination. 6. The licensee argues that the language at issue does not fit the definition of indecency because it is not a "patently offensive description" of excretory activities. We find, however, that the language does more than "describe." It explicitly emphasizes and highlights scatological functions. Moreover, the language employed is patently offensive in the context discussed above. Finally, this broadcast of patently offensive language concerning excretory activities occurred at a time of day (approximately 9 a.m.) when children were likely to have been in the listening audience. Thus, all the elements necessary for a determination of indecency are present. 7. In issuing the NAL, we recognized that the violation was a minor one within the violation category. Therefore, relying in part on our Policy Statement, Standards for Assessing Forfeitures which was then in effect, we assessed only a fraction of the base forfeiture amount recommended ($12,500) in such standards for violations of this type. These forfeiture standards have, however, been set aside by the United States Court of Appeals for the District of Columbia Circuit. United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). Accordingly, we must reassess the forfeiture amount. In doing so, we will apply directly the relevant statutory factors in 47 U.S.C.  503(b) to the particular facts of this case, giving due consideration to applicable case precedent as well. 8. The WYBB(FM) broadcast is similar in some respects to the "Michaels in the Morning Show" on WVIC-FM, for which we assessed the maximum monetary penalty, $2,000, allowed per violation under the then applicable statute. See Goodrich Broadcasting, Inc., 6 FCC Rcd 7484 (MMB 1991). It also bears similarities to the broadcast in WCKS Broadcasters, Ltd., 9 FCC Rcd 4871 (MMB 1994) ($4,000 NAL for two back-to-back slogans on WWST(FM)), which forfeiture amount was determined under the increased forfeiture authority effectuated by amendment to Section 503(b) of the Act at the end of 1989. This increased forfeiture authority also applies to the broadcast at issue here, which occurred in 1990. Taking into consideration all the factors of the WYBB(FM) broadcast, including its relatively mild level of seriousness and short duration, we believe a monetary forfeiture in the amount of $2,000 will provide a reasonable yet effective sanction and deterrent. 9. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, IT IS ORDERED, that L.M. Communications of South Carolina, Inc., licensee of Radio Station WYBB(FM), Folly Beach, SC, FORFEIT to the United States the sum of two thousand dollars ($2,000) for violation of 18 U.S.C.  1464 on August 8, 1990. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. In regard to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized in the attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Attachment