FEDERAL COMMUNICATIONS COMMISSION FCC 94-121 WASHINGTON, D.C. 20554 IN REPLY REFER TO: Released: May 20, 1994 CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mr. Mel Karmazin, President Infinity Broadcasting Corporation Licensee of Radio Station WJFK(AM) Baltimore, Maryland Controlling parent of: Sagittarius Broadcasting Corporation Licensee of Radio Station WXRK(FM) New York, New York Infinity Broadcasting Corporation of Pennsylvania Licensee of Radio Station WYSP(FM) Philadelphia, Pennsylvania Infinity Broadcasting Corporation of Washington, D.C. Licensee of Radio Station WJFK(FM) Manassas, Virginia 600 Madison Avenue, Fourth Floor New York, New York 10022 Dear Mr. Karmazin: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE to the four above-named licensees (collectively referred to as "Infinity") in the aggregate amount of Two Hundred Thousand Dollars ($200,000), pursuant to Section 503(b) of the Communications Act of 1934, as amended. The Commission has received a complaint alleging that indecent material was aired during the "Howard Stern Show," as broadcast by WWKB(AM), Buffalo, New York, on December 6, 1993 and January 19, 1994. Based on our experience and your acknowledgements in prior similar circumstances, we presume that the material aired by WWKB(AM) was also aired by the four above-named stations on the same dates as noted above and at a time of day between 6:00 a.m. and 10:00 a.m. Transcripts of portions of the allegedly indecent broadcasts, taken from tapes submitted by the complainant in the WWKB(AM) case, are attached. Pursuant to 47 U.S.C. Sections 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. Section 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 excerpts from the "Howard Stern Show" reflected in the attached transcripts appear to be indecent in that they contain language that describes sexual activities and 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 December 6, 1993 and January 19, 1994, Infinity violated 18 U.S.C. Section 1464 by airing indecent programming on each of the four above-named stations. Accordingly, pursuant to Section 503(b) of the Communications Act, Sagittarius Broadcasting Corporation, Infinity Broadcasting Corporation of Pennsylvania, Infinity Broadcasting Corporation of Washington, D.C., and Infinity Broadcasting Corporation, licensees of Stations WXRK(FM), New York, New York; WYSP(FM), Philadelphia, Pennsylvania; WJFK(FM), Manassas, Virginia; and WJFK(AM), Baltimore, MD, respectively, are hereby each notified of their separate apparent liability for a forfeiture of Fifty Thousand Dollars ($50,000) for their apparent willful and repeated violations of 18 U.S.C. Section 1464 on the dates set forth above. In determining the amount of these forfeitures, we find that the same exacerbating considerations concerning Infinity's history of apparent misconduct reviewed in assessing prior forfeitures against Infinity are applicable here. See Infinity Broadcasting Corporation, 8 FCC Rcd 2688, 2689-90 and n.3. (1992); Infinity Broadcasting Corporation, 8 FCC Rcd 6740, 6741 (1993); Infinity Broadcasting Corporation, FCC 94-26, adopted January 31, 1994. As in the earlier actions, we have continued to take account here of the various relevant factors set forth in Section 503(b) of the Communications Act of 1934, as amended, and reflected in our Policy Statement on Standards for Assessing Forfeitures, 8 FCC Rcd 6215 (1993), appeal pending sub nom. USTA v. FCC, Case No. 92-1321 (D.C. Cir. filed July 30, 1992). 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. Section 1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in the attachment to this letter. This letter was adopted by the Commission on May 20, 1994. BY DIRECTION OF THE COMMISSION William F. Caton Acting Secretary Attachments Radio Stations: WXRK(FM), New York, NY; WYSP(FM), Philadelphia, PA; WJFK(FM), Manassas, VA; WJFK(AM), Baltimore, MD Time Broadcast: Between approximately 6:00 and 10:00 a.m. Material Broadcast: Howard Stern Show HS: Howard Stern RQ: Robin Quivers MV: Male Voice December 6, 1993 HS: We're allowed to masturbate. What is this? Suddenly I have to wither up and die, be Ward Cleaver. MV: Friday and Saturday night if it makes you feel better. HS: Thank you. RQ: It's just ... HS: How come, we (unintelligible) RQ: Oh, you wouldn't do it if she knew? HS: No. It's embarrassing. MV: She would like me to, but I can't. HS: How do you, how do you ... MV: I could never do it with a woman watching. HS: What happens? You go to bed at the same time or no? MV: Sometimes, sometimes not. HS: Sometimes you go to bed earlier cause we have to get up early. MV: Whatever. HS: So you go to bed and then you wake up. MV: Sometimes I can't get to sleep, you know? HS: Right, and you wake up in the middle of the night and your wife is laying there sleeping, you can tell when she's asleep. MV: And you say, well I won't wake her and I'll be very calm. RQ: Quiet. MV: And by the end, you're not. HS: And you do it right, and you do it right in the bed? MV: Sure. RQ: You don't even get up? MV: No, where am I going to go? HS: Don't you ... MV: Take a little precaution. HS: Right. MV: You know. RQ: What's the precaution? MV: A Dixie cup, alright? What do you mean? RQ: (Laughs) HS: Takes a Dixie cup. MV: Some things you don't have to discuss. HS: He uses his sock. He has a sock. MV: Then I discard it, I don't put it in the wash. HS: Right, right, that's good, you bury it in the back yard with Jessica Hahn's lingerie. (Laughter) ... * * * January 19, 1994 HS: Alright. MV: I was, I came home after a band job late at night with this girl that I used to be with once in a while and she performed an act, you know, and I was drunk out of my mind, of course. RQ: Of course. HS: Of course. RQ: And (unintelligible) MV: The next day, as I recall, I kind of remember as it was happening that there was gagging going on, but this can happen ... HS: Right. MV: in such a thing (laughter) and the next, you know what I'm saying? I mean. RQ: Oh, I know what you're saying, okay? HS: And she was gagging, right? Okay, yeah, she was gagging ... MV: So she must have left that night. HS: and that's because you're such a monster. MV: Well, of course. HS: Yeah, right, I've seen you. Nobody's gagging on anything. MV: So obviously it could have been for some other reason. HS: Yeah. MV: Which we'll see it was. HS: Right, you were all proud of yourself cause she was gagging. MV: Hey. HS: Right, you were like, oh. MV: Probably sobered me up. HS: Right. MV: So she left either that morning or the night before, whatever, but then (laughter) I wanted to go to the bathroom. HS: Oh, oh. MV: And as I'm sitting there ... HS: Little vomit. MV: I look down and in my lower area hair is like hunks. HS: Hunks? Aw, alright, alright, alright, I don't want to hear about this. Oh my God. Oh, that's disgusting. Oh, you always have to outdo everyone, don't you? MV: There's Cheerios. RQ: Hey Gary, your girl just vomited on the bed. HS: So you look, you look down and there was vomit all over you. MV: The big chunks. HS: Wow. RQ: Oh. MV: I mean, oh Jesus, it was like the most horrendous thing ever.