FCC Record, Volume 5, No. 17, Pages 5138 to 5328, August 13 - August 24, 1990 Page: 5,315
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Federal Communications Commission
Federal Communications Commission
Washington, D.C. 20554
June 18, 1990
Released: June 26, 1990
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Gregorn P. Barber. President
Narragansett Broadcasting Company of California. Inc.
Licensee. Radio Station KSJO(FM)
1420 Koll Circle
San Jose. CA 95112
Dear Mr. Barber:
This letter constitutes a Notice of Apparent Liability for
a forfeiture pursuant to Section 503(b) of the Communications
Act of 1934. as amended.
On August 24. 1989. we asked for your comments
concerning complaints received by the Commission
alleging that portions of the "Perry Stone Show" (transcripts
of which are attached) broadcast by KSJO(FM).
San Jose. CA. contained indecent material. The broadcasts
at issue occurred from 7:00 to 8:00 a.m. on October 19.
20. 25. 27. 28 and November 10: from 8:00 to 9:00 a.m.
on November 4. and from 9:00 to 10:00 a.m. on October
31 and No'ember 10 and 14. 1988.
Your September 21. 1989. response to our letter of
inquiry concerning these broadcasts advises. for background
purposes. that you discharged Perry Stone from
KSJO on March 14. 1989. and immediately put into
practice your decision to cease broadcasting the kind of
language and "shock" humor that generated the complaints
against Perry Stone's program. You also advise that
you met with some of the complainants in May and June
1989 and issued a news release and a public apology with
respect to the Perry Stone Show prior to any Commission
inqutir regarding the matter.
You describe KSJO management's efforts. prior to Perry
Stone's dismissal, to comply with Commission rulings
regarding indecency. and state that management first
became aware of the particular broadcasts here at issue
when complainants submitted transcripts to the station in
November 1988 You concede that the broadcasts in question
were "tasteless" and may have been "offensive to
man\ listeners." but in view of strong listener support for
the Perrt Stone Show and your uncertainty about how to
appl> Commission standards. you did not suspend the
programming until you had determined that Perry Stone
was "insufficiently responsive to program direction and
could not be persuaded to satisfactorily conform to KSJO
guidelines." Citing the "largely unsettled" state of the law
on actionable indecency. you assert an inability, continuing
into the present, to determine whether the particular
broadcasts. especially those involving double entendre.
violated the Commission's articulated indecency standards.
In addition. based on your belief that "parents
would normally be in a position to supervise their children's
radio listening" before 9:00 a.m., you question
whether the seven broadcasts occurring before that hour
are actionable even if they were indecent.
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
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." In FCC v. Pacifica Foundation. 438
U.S. 726 (1978).jthe Supreme Court upheld the Commission's
authority to regulate indecent broadcasts and rejected
the argument that the Commission's definition.
essentially unchanged from the one used today. was
unconstitutionally vague. The United States Court of Appeals
for the District of Columbia Circuit has upheld the
Commission's authority to restrict, using the same definition
of indecency, the broadcast of indecent material
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) (" ACT ").
We find that the subject broadcasts all fit squarely within
the definition of indecency quoted above. Even in the
cases of double entendre. not only was the language
understandable and clearly capable of a specific sexual or
excretory meaning but. because of the context. the sexual
and excretory import was inescapable. See Infinity Broadcasting
Corp. of Pa.. 2 FCC Rcd 2705 (1987). recon..
Infinity Broadcasting Corp.. 3 FCC Rcd 930 (1987). aff'd in
part and remanded in part sub nom. Action for Children's
Television v. FCC. supra. As the broadcasts occurred during
daytime hours. they are legally actionable. Indeed. in
ACT. the Commission's application of its indecency standard
to broadcasts aired between 6:00 and 10:00 a.m. was
specifically upheld regarding the broadcast at issue in
Infinity. supra. With respect to KSJO's subsequent efforts
to avoid the broadcast of indecent material. the Commission
generally considers prompt and effective remedial
action by a licensee as mitigative in determining the
appropriate sanction level in an enforcement proceeding.
In this case. however. we do not believe that the licensee's
actions. while perhaps ultimately effective. were such as
should affect the sanctions imposed for the broadcasts
cited in this letter. Your letter states. for example. that the
specific incident that triggered Stone's suspension was
unrelated to the Commission's indecency policies.
Thus. it appears that on the above-referenced dates in
October and November 1988. at the times stated. Station
KSJO(FM) violated 18 U.S.C. 1464 by airing indecent
programming at times when there was a reasonable risk
that children may have been in the audience. Accordingly.
pursuant to Section 503(b) of the Communications
Act. Narragansett Broadcasting Company of California.
Inc.. is hereby advised of its apparent liability for a forfeiture
of twenty thousand dollars ($20.000). The amount
specified was reached after consideration of the factors set
forth in Section 503(b)(2) of the Act.
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United States. Federal Communications Commission. FCC Record, Volume 5, No. 17, Pages 5138 to 5328, August 13 - August 24, 1990, book, August 1990; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1655/m1/193/: accessed November 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.