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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 ) ) State University of New York ) ) Licensee of Radio Station ) WSUC(FM), Cortland, NY ) ) Notice of Apparent Liability ) MEMORANDUM OPINION AND ORDER Adopted: July 28, 1998 Released: August 6, 1998 By the Commission: 1. The Commission has under consideration (1) a $23,750 Notice of Apparent Liability (NAL) issued under authority of 47 U.S.C.  503(b) on January 7, 1993, to State University of New York ("SUNY"), licensee of Radio Station WSUC(FM), Cortland, New York, for the June 21, 1992, mid-afternoon broadcast of song lyrics which appeared to be indecent, and (2) the licensee's March 5, 1993, Statement in Support of a Rescission and or Reduction of the Proposed Forfeiture. 2. Section 1464 of Title 18 of the United States Code prohibits utterances of "any obscene, indecent or profane language by means of radio communication." 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. 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 licensee does not challenge our finding that the broadcast in question is indecent. It argues, however, that no fine should be imposed under the circumstances. In particular, it states that, without a playlist for the day in question and without identifying announcements on the tape recording submitted by the complainant, it is unable to ascertain whether the broadcast in question did actually air on WSUC(FM), and if it did, when that broadcast might have occurred. The licensee further states that, if the broadcast was made as alleged, the individual most likely to have committed this violation of station policies (the person who was logged on the transmitter at the day and time of the alleged broadcast and who failed to maintain a playlist as required by station policies) was discovered shortly afterwards to have committed several serious breaches of trust against the station and the licensee university, including theft of station equipment and forgery of purchase orders. As a result, this individual was tried, convicted, sentenced to a jail term (which he served), and ordered to pay restitution, according to the certified arrest report. In addition, SUNY officially banned him from entering the Cortland campus, on threat of criminal trespass. The licensee thus argues that the broadcast, if it occurred, was an isolated and unforeseeable "frolic and detour" by one individual who victimized the station and the college community by his misconduct. The licensee urges that basic notions of justice dictate that it be treated as an entity that has been wronged, deserving a substantially lesser sanction. 4. In addition, the licensee asserts that its prompt and sincere remedial actions within days of the alleged broadcast should be considered in mitigation of a forfeiture. According to declarations offered by the President of SUNY at Cortland and other college officials, upon meeting with the complainant four days after the alleged broadcast and listening to a tape of the offending broadcast, the President ordered an immediate investigation which resulted in the cessation of WSUC(FM)'s broadcast operations until July 9, 1992. This investigation led to the arrest on August 6, 1992, of the individual charged with the criminal actions described above. 5. As a final matter, the licensee argues that the proposed forfeiture of $23,750 is excessive. According to the declaration submitted by the Treasurer of the Cortland College Student Association, the proposed fine exceeds the 1992-93 annual budget for WSUC(FM) operations, which are funded entirely by student activity fees. Imposition of the full forfeiture, states the licensee, would have "a devastating impact on the College community." The licensee also argues that the proposed fine against WSUC-FM, for a single broadcast, is inequitable when compared with other fines issued for "significantly more serious" indecency violations. It cites, for example, one case of a comparable fine against a commercial station for 16 indecent broadcasts occurring over a month's time, evidencing, according to SUNY, a pattern of misconduct. The licensee also requests a reduction based on its assertedly strong compliance history, operating WSUC(FM) and more than a dozen other noncommercial broadcast stations with very few instances of FCC sanctions. 6. Although the licensee asserts that the complainant's tape recording of the broadcast in question cannot be linked to any broadcast on WSUC(FM), the evidence suggests that the broadcast did occur as alleged, in the middle of the afternoon on Sunday, June 21, 1992. We are, however, persuaded that a reduction in the forfeiture amount is warranted in this case. 7. The licensee has maintained a history of compliance with Commission rules. Prompt and apparently effective remedial action in response to a reasonably prompt citizen complaint is a further mitigating factor here. The licensee emphasizes that, within a short period of time after hearing about the alleged broadcast, it took steps to take WSUC(FM) off the air pending an investigation, sent a written apology to the complainant, adopted new operating procedures, and instituted criminal proceedings against an employee (for reasons unrelated to the broadcast but based on actions by the employee against the station). See, In the Matter of Liability of WVGO License Limited Partnership, 12 FCC Rcd 5918 (1997) (reduction based on history of compliance and prompt acknowledgement and correction of programming problems). 8. Taking into consideration all the factors of the WSUC broadcast, and the immediate steps taken by college administrators to remedy the instant situation and prevent such problems in the future, we believe a monetary forfeiture in the amount of $4,200 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 State University of New York, licensee of Station WSUC(FM), Cortland, New York, FORFEIT to the United States the sum of FOUR THOUSAND TWO HUNDRED Dollars ($4,200) for violation of 18 U.S.C.  1464 on June 21, 1992. 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 Magalie Roman Salas Secretary Attachment Radio Station WSUC-FM, Cortland, NY Date/Time Broadcast: June 21, 1992 at mid-afternoon Material broadcast: Rap Music Recorded music: Unusual, kinda casual, yes, with me girls are obsessed, to get undressed, get fresh and have me yodel in the valley, and I do it at the drop of a dime, dime, sometimes go in from behind, (Unintelligible). No joking, my tongue just keeps on poking, and the best type of oochie coochie, is the type that tastes like sushi, eat it, watch your girl get frisky and then wash it down with a shot of whiskey. (Unintelligible). In the valley. (Unintelligible). I remember when I spent the night at Sally's house, woke up with cotton mouth. Couldn't speak, my tongue was weak, from yodelling in the valley. Oh, I love them mountain sides(?) and a piece of pie before my eyes, but before I taste them juices, I make sure that Sally douches. But she's not the only one, I like to yodel on, it sounds wicky wacky, ticky tacky, but you know that I'm most happy, yodelling in the valley. Yodelling in the valley. A delicious break from potatoes. Check it out. I need some more yodelling music. A delicious break from potatoes, a delicious break from potatoes. Check it out. I need some more. (Unintelligible). A delicious break from potatoes. A delicious break from potatoes. (Unintelligible). Yodelling in the valley. Can't figure it out. Girls think I'm a freak, 'cause I don't speak, whisper in their ear, and make it clear I love 'em. Sorry dear. Don't. (Unintelligible). 'Cause how can I to say I love you when you're sitting upon my face? Oh yes, it's more than (Unintelligible) in the valley. You (Unintelligible). Had a bush bigger than the Amazon, forest that felt like a taurus(?} (Unintelligible) like a back, back. Oh shit, where's my weed-wacker? Came out with hair on my tongue. But still I got the job done in the valley. (Unintelligible). Sally. I like that (Unintelligible) burger. (Unintelligible). Yodelling in the valley. Yodelling in the valley. (Unintelligible). A delicious break from potatoes. Yodelling. Yodelling. (Unintelligible). Now I talked to this girl for about two weeks, and I've been many places and seen many freaks but this girl was just (Unintelligible) nobody could lick it and the bitch was just flappin' as she was like buggin'(?). I got to know her but this is the time she gave some things of hers for some things of mine. Everything was going good, could nothing go better? Anything she wanted to do I would just let her. Wasn't like them other niggers trying to screw her up, I would rush her to the mall, and (Unintelligible) her up. Have a drink when she was by my side, I want the bitch to look good when she's rolling in my ride. Two weeks later I noticed a change, something wasn't right, she was acting kinda strange. Took some money out of my stash, stuffed it in her purse, you think you could get (Unintelligible). Shit it's gonna get worse. Well, look like I got myself a few problems, (Unintelligible) being I'll see 'ya (Unintelligible) I'll solve 'em. She ran out the house, and drove down the street, stopped the bus and (Unintelligible) I couldn't believe what I was told, he gave the bitch double up for a (Unintelligible) piece of gold. So I picked up on the bitch and said, (Unintelligible). "'Ho' I caught 'ya, and by the way where's the link I bought 'ya?" Now this girl must have lost her mind, scraping up the dough with the things of mine, I want to beat her(?). Better yet, stomp her, break out the 12-gauge and (Unintelligible) full of buck shot, pump her. (Unintelligible). Well, I said (Unintelligible) Fuck it, I'm a chill, this girl needs help, she's mentally ill. She's got the tricks, she's got to spending my (Unintelligible) so much I just had to rip the pipe out of her lips. She cried, oh please give me some money, I promise I'll stop, please. (Unintelligible). I felt sorry for the girl 'cause she's being misused, it was the crack and the devil(?) applied the abuse. This relationship just ain't going to last, girl I'm have to get rid of your ass, 'cause you're my dick, dick ding-a-ling, (Unintelligible) trying to tie my arms and legs with a string, my money, I know you love me, but let me tell you one thing, (Unintelligible) I'm not your puppet, (Unintelligible). So listen up to what we say, because (Unintelligible) Bitch. Bitch. You want to suck what? (Unintelligible). I wouldn't touch that. (Unintelligible). And with your wrinkled pussy, I can't be a lover. Hopped out of bed about three o'clock, stumbled to the door when I heard the knock. I thought, man, now who in the fuck could this be? When I got to her, she said, (Unintelligible) it's me. I thought we was supposed to go out this week. I said not tonight girl, I'm about to go back to sleep. (Unintelligible). Being a big booty, helluva freak, before I closed the door she blocked the shit(?) with her feet. Pushed her way in, didn't use much force, she said, I know we're going out. I say, yeah, of course. I'm saying that this bitch (Unintelligible). 'Cause why the fuck close the door this time of the night. But the only thing that was on my mind, was just shoving my dick up this bitch's behind. She thought that I forgot, that she was the one that was smoking rocks. I looked at the girl and said, babe, do you know what Mark said? Your ass ain't nothing but a base hit. She disagreed, she says, stop lying, so she broke out crying. I said, baby, you got to help yourself, don't expect help from anyone else, this relationship just ain't going to last, girl I'm going to have to get rid of your ass, yeah, 'cause you're on my dick, dick, ding-a-ling. Trying to tie my arms and legs with a string. My money Unintelligible) I know you love it, but let me tell you one thing, I'm not, I'm not your puppet. Days later, the bitch, oh, you got to give me some now, bitch. (Unintelligible). The girl was dumb, she was straight out sprung, that dope was a rope and her soul was hung. But one day I went to see my D J, the grand, incredible, wizard Tony A. Got to his house then I knocked on the door, the nigger didn't answer so I banged once more. I wondered where the fuck he was at, so I jumped off the porch then I fell to the back. He was there 'cause I heard the system pumping, went up to the window, and heard the bed romping. I grabbed a crate just to peek through the window, the trick (Unintelligible) was betting, played like Nintendo(?). Jumped in the window, when I said, what's up? Tony had her bent over (Unintelligible) he was working her butt. She seen my face, she started to scream, I said, shut up bitch, you're getting double teamed. Popped my dick in her mouth, and we rocked it back and forth, from the east to the west, the south and the north, I got tired and said, man, I'm quitting. Tony A said (Unintelligible) pay this bitch, I grabbed a rock and she started to flip, the 'ho wanted to smoke, man this girl was a trip. She said 'yo' check this out man, my dope smokes in a pipe and it melts in my hand. Now that she sucked my dick and (Unintelligible) Tony fuck you in the ass. I know this relationship just ain't going to last, 'cause yeah, you're on my dick, dick, ding-a-ling, trying to tie my arms and legs with a string. I know you love me, well let me tell you one thing, I'm not, I'm not your puppet. (Unintelligible). Well I pulled out my dick, popped it in her mouth, and she sucked it, picked up her dress, and seen this bloody mess, so I said fuck it, fuck it, fuck it. Now the story that T told won't make you rich but, (Unintelligible). * *