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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************** Federal Communications Commission Washington, D.C. 20554 April 2, 1997 In reply refer to: 1800C1-JEE 95120012 96010185 96010185a 96010211a 96100043 96100438 Released: April 8, l997 CERTIFIED MAIL, RETURN RECEIPT REQUESTED EZ New Orleans, Inc. Licensee, WEZB(FM), New Orleans, LA 201 St. Charles Avenue Suite 201 New Orleans, LA 70170 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE pursuant to Section 503(b) of the Communications Act of 1934, as amended, under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules. The Commission has received information indicating that Radio Station WEZB(FM), New Orleans, LA, may have violated 18 U.S.C.  1464 by broadcasting allegedly indecent material during the following programs: Title Date Time The Passion Show November 22, 1995 8:30 - 10:00 p.m. The Passion Show December 6, 1995 8:30 - 10:00 p.m. The Passion Show January 2, 1996 8:30 - 10:00 p.m. The Passion Show January 3, 1996 8:30 - 10:00 p.m. The Howard Stern Show March 7, 1996 6:00 - 10:00 a.m. The Howard Stern Show June 3, 1996 6:00 - 10:00 a.m. Transcripts of the allegedly indecent broadcasts, taken from tapes submitted by the complainants, are attached. Pursuant to 47 U.S.C.  312(a)(6) and 503(b)(1)(D), the Commission has statutory authority to take appropriate administrative action when licensees broadcast material in violation of 18 U.S.C.  1464, which provides criminal penalties for anyone who "utters any obscene, indecent or profane language by means of radio communication." 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, 852 F.2d 1332 (D.C. Cir. 1988). The court subsequently concluded that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a properly tailored means of vindicating the government's compelling interest in the welfare of children. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996). We believe that the subject excerpts are indecent in that they contain language that describes sexual and excretory activities or organs in patently offensive terms. Because the material aired at times when there was a reasonable risk that children may have been in the audience, it is legally actionable. Thus, it appears that on November 22, 1995; December 6, 1995; January 2, 1996; January 3, 1996; March 7, 1996; and June 3, 1996, Station WEZB(FM) violated 18 U.S.C.  1464 by airing indecent programming. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, EZ New Orleans, Inc., is hereby advised of its apparent liability for a forfeiture of Twelve Thousand Dollars ($12,000), for its apparent violations of 18 U.S.C.  1464 on November 22, 1995; December 6, 1995; January 2, 1996; January 3, 1996; March 7, 1996; and June 3, 1996. The amount specified was determined after consideration of the factors set forth in Section 503(b)(2) of the Act, including "the nature, circumstances, extent, and gravity of the violation." In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R.  1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in the attachment to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Attachments cc: M. Anne Swanson, Esq. Koteen & Naftalin Suite 1000 1150 Connecticut Ave., NW Washington, DC 20036