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KayeSmith Enterprises, 98 FCC 2d 675, 682 (Rev. Bd. 1984),  SP- xrecon. denied, 98 FCC 2d 670 (Rev. Bd. 1984), review denied, FCC 85192, released April 19, 1985, aff'd  S(- xby judgement sub nom. Hoffart v. FCC, 787 F.2d 675 (D.C. Cir. 1986) (table), citing Chronicle  S- xBroadcasting Co., 19 FCC 2d 240, 244 (Rev. Bd. 1969)(subsequent history omitted). Howard Stern's  S- xalleged remarks do not appear to have been calculated to threaten or intimidate the American Family  xjAssociation, or any other party, from complaining about his broadcasts. Rather, they seem to have been  x"offthecuff" comments complaining about those listeners who allegedly have paraphrased his material  xinaccurately. Such comments do not rise to the level of intimidation or harassment and are more  S8- x\appropriately characterized as a display of bad temper, similar to those comments at issue in Federal  S - xBroadcasting System, Inc., 62 FCC 2d 861 (Rev. Bd. 1977). In that case, the Review Board ruled that  xa threat of a civil suit was nothing more than an "unseemly display of bad temper . . . rather than a  xcalculated effort" to intimidate or harass. 62 FCC 2d at 869. The Review Board consequently found that  S"- xka character qualifications issue was not warranted. Compare Patrick Henry, 69 FCC 2d 1305 (1978),  xwhere the Commission found substantial and material questions of fact because the licensee threatened  xzsuit, actually brought suit, and conflicting facts existed as to a motive for filing suit. In the absence of  xevidence of a calculated attempt to threaten or harass complainants, and given that there is no evidence  xLbefore us that Howard Stern actually filed suit, we find that no substantial and material questions of fact exist with respect to Howard Stern's broadcast. "',C)C)UUO)"Ԍ S-xB. Broadcast of Obscene or Indecent Material  S-  nT Px7. Blackwell also alleges that Eagle violated 18 U.S.C.  1464 when KEGL(FM) broadcast  xmaterial on April 3, 1995; June 24, 1997; June 26, 1997; and July 15, 1997, that Blackwell considers to  xbe obscene and/or indecent. We have thoroughly reviewed the material submitted in support of  xBlackwell's allegation. On the basis of that review, we conclude that this broadcast material, alleged to violate 18 U.S.C.  1464, is not actionably indecent.  S-  II. BLACKWELL'S 1994 INFORMAL OBJECTION ĐTP   x8. Blackwell asserts, in his 1994 informal objection, that Eagle violated 18 U.S.C.  1464 when  xkKEGL(FM) broadcast indecent material. Blackwell submitted twelve hours of excerpts, taped over a  xnumber of days, in support of his contention. We have thoroughly reviewed the material contained on  xthe tapes and determined all but one broadcast to be not actionably indecent. We find that KEGL(FM)  xkapparently violated 18 U.S.C.  1464 by broadcasting allegedly indecent material during the "Howard  S - x.Stern Show" on September 30, 1993, between 6 a.m. and 11 a.m.A ; X- xiԍ#&J\  P6Q &P# #C\  P6QP#The same broadcast material at issue here was the subject of two NALs, both issued on February 1, 1994, to:  x[(1) Americom Las Vegas Ltd. Partnership, licensee of KFBI(FM), Pahrump, NV, (9 FCC Rcd 1753); and, (2)  x-Sagittarius Broadcasting Corporation, Infinity Broadcasting Corporation of Pennsylvania, Infinity Broadcasting  x Corporation of Washington, DC, and Infinity Broadcasting Corporation, licensees of stations WXRK(FM), New York,  xNY; WYSP(FM), Philadelphia, PA; WJFK(FM), Manassas, VA; and WJFK(AM), Baltimore, MD, respectively, (9  yO-FCC Rcd 1747).  #C\  P6QP#A A transcript of the allegedly indecent broadcast, taken from a tape submitted by Blackwell, is attached.   ]x9. Pursuant to 47 U.S.C.  312(a)(6) and 503(b)(1)(D), the Commission has statutory authority  xto take appropriate administrative action when licensees broadcast material in violation of 18 U.S.C.   x1464, which provides criminal penalties for anyone who "utters any obscene, indecent or profane language by means of radio communication."   ^x 10. The Commission has defined indecency as language or material that, in context, depicts or  xidescribes, in terms patently offensive as measured by contemporary community standards for the broadcast  S- xjmedium, sexual or excretory activities or organs. See Infinity Broadcasting Corporation of Pennsylvania,  x2 FCC Rcd 2705 (1987). The United States Court of Appeals for the District of Columbia Circuit has  x=upheld the Commission's authority to restrict the broadcast of indecent material at times when there is a  Sx- xreasonable risk that children may be in the audience. Action for Children's Television v. FCC, 852 F.2d  x1332 (D.C. Cir. 1988). The court subsequently concluded that a 10:00 p.m. to 6:00 a.m. "safe harbor"  xwas justified as a properly tailored means of vindicating the government's compelling interest in the  S- xLwelfare of children. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996).   x 11. We believe that the subject excerpt is indecent in that it contains language that describes  xLsexual and excretory activities or organs in patently offensive terms. Because the material aired at a time  x when there was a reasonable risk that children may have been in the audience, it is legally actionable.  xThus, it appears that on September 30, 1993, Station KEGL(FM) violated 18 U.S.C.  1464 by airing indecent programming. "!a,C)C)UU7#"Ԍ  x 12. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended,  x=under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's  xRules, Eagle is hereby advised of its apparent liability for a forfeiture of Two Thousand Dollars ($2,000),  x]for its apparent violation of 18 U.S.C.  1464 on September 30, 1993. The amount specified was  xdetermined 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."   0x 13. In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the  xdate of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be  xreduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should  x\be reduced shall include a detailed factual statement and such documentation and affidavits as may be  x[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.  S -  III. DAD'S 1995 INFORMAL OBJECTION ĐTP   x 14. DAD alleges in its 1995 Informal Objection that KEGL(FM) aired indecent and/or obscene  xymaterial and submitted thirtythree audiotapes which contained thirtyone days of broadcasts in support  xof its contention. Because DAD failed to provide sufficient context to enable us to determine whether  xsome of the material about which it complains meets the Commission's definition of indecency, we dismiss  xthe portion of DAD's complaint that pertains to the following broadcast dates: May 12, 24, 29, 30, 1995;  xand, June 7, 9, 14, 16, 19, 20, 21, 22, 30, 1995. The remainder of DAD's complaint, which includes the  xfollowing broadcast dates: April 3, 1995; May 1, 4, 5, 8, 10, 18, 19, 25, 26, 31, 1995; and June 2, 6, 15, 23, 26, 27, 29, 1995; is dismissed as not actionably indecent.  S-   x15. For the reasons set forth above, Blackwell's 1994 informal objection IS GRANTED IN PART,  xto the extent indicated herein, and a Notice of Apparent Liability for $2,000 is issued to Eagle (see  S- xparagraphs 1213, supra) for the broadcast of indecent material about which Blackwell complained.  Sx-Additionally, Blackwell's 1997 informal objection and DAD's informal objection are DENIED .   x16. We find that the applicants are qualified and that grant of the pending renewal applications  xyand application for assignment of Station KEGL(FM) to Nationwide Mutual Insurance Company would  xMserve the public interest, convenience and necessity. Accordingly, it is ORDERED, that the pending  x0applications for renewal of license of Station KEGL(FM) (File Nos. BRH970327XC and BRH950331YB) ARE GRANTED. It is FURTHER ORDERED, that the application for assignment of license ",C)C)UU"  S- xof Station KEGL(FM) from Eagle Radio Inc. to Nationwide Mutual Insurance Company (File No.  S-BAPLH970106GG) IS GRANTED. x` `  hh@hSincerely, x` `  hh@hRoy J. Stewart x` `  hh@hChief, Mass Media Bureau Attachments x` `  hh@h  S -cc:xDonald Zeifang, Esq.  S -xEdward W. Hummers, Jr., Esq. xDennis J. Kelly, Esq. xElvin F. Arnold x"X,C)C)UU" #&J\  P6Q &P#Radio Station: KEGL(FM), Ft. Worth, TX Date/Time Broadcast: September 30, 1993 Material broadcast: Howard Stern Show 9/30/93 at 9:18  S-*x*  S-  1HS:xThe legs, rolling around on a Jaguar all sexed up. That Jaguar must have stunk for three days. xI'm watching.  Sp-RQ:xI don't think she's a smelly person.  SH -  HS:XxNo, but you know girls have a special scent, that they leave, when they're all hot and they're not wearing panties and they're laying all over a car. Panty juice. I always look at my wife's panties.(# xThere's always something going on there too.  S -RQ:xOh.  S -HS:xShe always.  S -RQ:x(Unintelligible).  SX-HS:xWhat do you mean, boy oh boy?  S0-RQ:xPanties.  S-HS:xThese women have all kind of stuff going on.  S-RQ:xLike yours are crystal clean.  S-HS:xI never liked, there's always like junk going on in my wife's panties.  S-RQ:xLet me see yours right now.  Sh-HS:xFine. What are you saying?  S@-RQ:xI want to see yours right now.  S-HS:xI'll tell you, I don't have the stuff, you know, I have some leakage xI'll admit.  S-RQ:x(Laughs).  S-HS:xI think she's leaking from everywhere.  Sx-RQ:x(Laughs).  SP-HS:xNo sometimes I look at my wife's underpants and I go, yeah, I shouldn't xreally look at her underpants cause it's kind of a turn off. You xknow what I mean? There's lots going on.  S-RQ:xI don't know why you're doing that.  S-HS:xShe always has pads and stuff. I don't know what's going on. xIt's always a twosided surprise. You got, like stuff going on in your xunderpants right?  S8-RQ:xEverybody does.  S -HS:xReally? God, it's disgusting.  S!-*x*  s4H$-#d6X@DQ@#