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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )  File No. 99090433
                                )
Infinity Radio License, Inc.1   )  NAL/Acct.             No. 
2001320800008
                                )  Facility ID #18527
Licensee of Station WLLD(FM),   )  JWS
Holmes Beach, Florida           )

                      FORFEITURE ORDER

   Adopted: February 28, 2001           Released:  March  2, 
2001

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Order, we impose a forfeiture of $7,000 on 
Infinity Radio License, Inc. (``Infinity''), licensee of 
Station WLLD(FM), Holmes Beach, Florida, for a willful 
violation of 18 U.S.C.  1464 and 47 C.F.R.  73.3999.  This 
action is taken pursuant to 47 U.S.C.  503(b)(1)(D) and 47 
C.F.R.  1.80(f)(4).    

                       II.  BACKGROUND

     2.  By Notice of Apparent Liability, DA 00-2724, 
released December 5, 2000 (``NAL''), we determined that 
certain material apparently broadcast over WLLD(FM) on 
September 11, 1999, was indecent.  After considering the 
context, we opined that the language from two discrete 
excerpts from the live rap and hip hop concert, ``The Last 
Damn Show,'' contained patently offensive references to oral 
sex as well as sexual intercourse.  NAL at  7.  Because the 
station broadcast the cited material between 6 p.m. and 10 
p.m., we concluded that the broadcast occurred at a time 
when there was a reasonable risk that children might be in 
the audience.  See 47 C.F.R.  73.3999.  After considering 
the circumstances in light of the Commission's forfeiture 
guidelines,2 which provide a base forfeiture for indecency 
of $7,000, we proposed a forfeiture of $7,000 for the 
indecent broadcast.  Infinity has submitted a response, 
which we address here.3                       III.  DISCUSSION

     3.  Section 503(b)(1) of the Communications Act (the 
``Act''), 47 U.S.C.  503(b)(1), provides in pertinent part:

     Any person who is determined by the Commission, in 
     accordance with paragraph (3) or (4) of this 
     subsection to have --- 
     ...
     (D) violated any provision of section 1304, 1343, 
     or 1464 of title 18, United States Code; 
     shall be liable to the United States for a 
     forfeiture penalty.

18 U.S.C.  1464 provides criminal penalties for anyone who 
``utters any obscene, indecent or profane language by means 
of radio communication.'' 

     4.  The Commission has defined indecent speech as 
language 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.  Infinity Broadcasting Corporation of 
Pennsylvania, 2 FCC Rcd 2705 (1987) (subsequent history 
omitted) (citing Pacifica Foundation, 56 FCC 2d 94, 98 
(1975), aff'd sub nom. FCC v. Pacifica Foundation, 438 U.S. 
726 (1978).  The Commission's authority to restrict the 
broadcast of indecent material extends to 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).  Current law holds that such times begin at 6 
a.m. and conclude at 10 p.m.  Action for Children's 
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. 
denied, 116 S.Ct. 701 (1996).  Thus, to be actionably 
indecent, the material in question must not only meet the 
standard referenced above but also air after 6 a.m. and 
before 10 p.m.  See 47 C.F.R.  73.3999.  

     5.  Infinity argues that we erred in concluding that 
the excerpts contained indecent material.  With respect to 
the first segment, Infinity submits that, in context, the 
words ``pump'' and ``bang'' conveyed no sexual meaning.  
According to Infinity, ``the rap world'' uses ``pump'' to 
signify the playing of loud music or the pump of a pump-
action gun.  Likewise, although Infinity allows that 
``bang'' can be a slang term for intercourse, Infinity 
submits that ``bang'' more commonly means ``to fight to 
kill'' as it relates to gang activity.  Thus, Infinity 
submits, there is significant doubt as to whether the 
excerpt described sexual activities.  As for the second 
segment, Infinity contends that its sexual import would not 
be inescapable to children, that the material is consistent 
with contemporary community standards, and that it was so 
fleeting and isolated that no sanction is warranted.  
Finally, Infinity argues that our indecency standard is 
unconstitutional on its face.  

     6.  As explained below, we reject Infinity's arguments 
regarding the second segment, which we have attached hereto.  
We find that this material was actionably indecent and, by 
itself, warrants imposition of the $7,000 forfeiture.  
Consequently, there is no need to address Infinity's 
arguments with respect to the material broadcast in the 
first segment.  

     7.  In the second segment, the speaker repeatedly and 
unmistakably asks the audience in patently offensive terms 
whether they perform and/or enjoy a type of oral sex.  While 
the segment arguably constituted a relatively minor portion 
of the five-hour concert, it was hardly fleeting.  As 
detailed in the NAL, it was explicit, graphic, offensive and 
repetitive.  We have found similar material to be indecent, 
and we see no reason to find otherwise with the material at 
issue.  See WQAM License Limited Partnership, 15 FCC Rcd 
2518, recon. denied, 15 FCC Rcd 15349 (2000); The Rusk 
Corporation (KLOL(FM)), 8 FCC Rcd 3228 (1993).  See also 
Back Bay Broadcasting (WWKX(FM)), 14 FCC Rcd 3997 (Mass 
Media Bureau 1999); LBJS Broadcasting Company, L.P. 
(KLBJ(FM)), 13 FCC Rcd 20956 (Mass Media Bureau 1998).  For 
these reasons, we also disagree with Infinity's contention 
that the sexual import of the material would be inescapable 
to children.

     8.  Nor do we find that the cited utterances in the 
second segment are consistent with contemporary community 
standards.  Among other things, Infinity points to the 
popularity of ``The Last Damn Show'' as well as the 
popularity of the event's performers.  However, the relevant 
test is not the popularity of the speakers or the event but 
whether the material broadcast is patently offensive as 
measured by contemporary community standards for the 
broadcast medium.  The Rusk Corporation (KLOL(FM)).  In 
applying that criterion, the Commission does not employ a 
local standard, but one that references the average 
broadcast listener.  WPBN/WTOM License Subsidiary, Inc. 
(WPBN-TV and WTOM-TV), 15 FCC Rcd 1838, 1841 (2000); 
Infinity Broadcasting Corp., 3 FCC Rcd 930, 933 (1987).  
While standards and mores certainly change over time, we 
cannot accept Infinity's contention that the second excerpt, 
which contains repeated, explicit and offensive references 
to a sexual activity, is consistent with contemporary 
community standards for the broadcast medium.  We thus 
conclude that Infinity's reliance on Mr. Peter Branton, 6 
FCC Rcd 610 (1991) (subsequent history omitted), and 
Pacifica Foundation, Inc., 2 FCC Rcd 2698 (1987), is 
misplaced.  Both Branton and Pacifica (relative to the 
program, ``Shocktime, U.S.A.'') focused on the broadcast of 
expletives.  The Commission excused the licensee in Branton 
after considering the context of the material, while in 
Pacifica, the Commission did not have sufficient information 
to determine the context of the offensive speech or whether 
its use was isolated.  In the case before us, we have 
properly considered both the offensive material and its 
context prior to concluding that WLLD(FM) aired indecent 
speech. 

     9.  Finally, Infinity's argument that the Commission's 
indecency standard is unconstitutional on its face lacks 
merit.  In addressing a similar argument, the Commission 
observed that the Supreme Court, in Reno v. ACLU, 521 U.S. 
844 (1997), ``indicated that our broadcast indecency 
regulations were justified because of the significant 
differences between the Internet and the broadcast medium.''  
WQAM, 15 FCC Rcd at 2519-20. 

     10.  Section 503(b) of the Act and 47 C.F.R.  1.80 
both state that any person who willfully or repeatedly fails 
to comply with the Act or the Commission's rules shall be 
liable for a forfeiture penalty.  In this connection, the 
term ``willful'' means that the violator knew that it was 
taking the action in question, irrespective of any intent to 
violate the Commission's rules.4  As explained above, 
Infinity knew what it was broadcasting.  In assessing a 
forfeiture, we take into account the statutory factors set 
forth in section 503(b)(2)(D) of the Act.  Those factors 
include the nature, circumstances, extent and gravity of the 
violation, and, with respect to the violator, the degree of 
culpability, any history of prior offenses, ability to pay, 
and such other matters as justice may require.5  
     
     11.  The Commission's Forfeiture Guidelines set a base 
forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.6  After considering all the 
facts and circumstances, we conclude that the base 
forfeiture amount is the appropriate sanction and that 
neither an upward nor downward adjustment should be made.   

                    IV.  ORDERING CLAUSES

     12.  Accordingly, IT IS ORDERED THAT, pursuant to 47 
U.S.C.  503(b) and 47 C.F.R.  0.111, 0.311 and 1.80, 
Infinity Radio License, Inc. FORFEIT to the United States 
the sum of seven thousand dollars ($7,000) for willfully 
violating 18 U.S.C.  1464 and 47 C.F.R.  73.3999. 

     13.  Payment of the forfeiture shall be made by mailing 
a check or similar instrument, payable to the order of the 
Federal Communications Commission, to the Forfeiture 
Collection Section, Finance Branch, Federal Communications 
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482, 
within thirty days of the release of this Forfeiture Order.  
See 47 C.F.R.  1.80(h).  The payment should note the 
NAL/Acct. No. referenced above.  If the forfeiture is not 
paid within that time, the case may be referred to the 
Department of Justice for collection pursuant to 47 C.F.R.  
504(a).  

     14.  IT IS FURTHER ORDERED THAT a copy of this 
FORFEITURE ORDER shall be sent by Certified Mail Return 
Receipt Requested to Infinity Radio License, Inc., 10220 
River Road, Suite 305, Potomac, Maryland 20854, attention: 
Stephen A. Hildebrandt, 
Vice President; to H. Anthony Lehv, Leventhal, Senter & 
Lerman, P.L.L.C., 2000 K Street, N.W., Suite 600, 
Washington, D.C. 20006-1809. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
                         ATTACHMENT

Radio Station:      WLLD(FM), Holmes Beach, Florida
Date/Time Broadcast:     September 11, 1999, between 6 p.m. 
and 10 p.m.
Material Broadcast: ``The Last Damn Show'' (Comments before 
a large crowd)

MV:  Male Voice


MV:  We ain't going to have no more feedback problem.  Fuck 
it.  We're going to go all the way back where you all feel 
(Unintelligible) mother fucking noise.  (Unintelligible)  
God damn, where are my pussy eating niggers?  Any my niggers 
into eating pussy?  Y'all make some noise.  Hey, where are 
the girls?  If you're eating pussy, where you at?  That's 
it.  Oh, they all like it.  I ain't eating no pussy tonight.  
If you all don't like it, fuck it.  I ain't going to beg 
you.  You like it?  [Edit]  And my dog don't give a fuck and 
we'll fuck you sucking up coke, you know.  Trying to explain 
this shit away, niggers.  I don't think y'all heard me.  I 
got MTV Best New Artist Slim Shady backstage.  Slim mother 
fucking Shady backstage.  Make some noise.
_________________________

1  The licensee changed from CBS Radio License, Inc. to 
Infinity Radio License, Inc. following the grant of a pro 
forma application on December 14, 2000 (File No. BTCH-
20001204AGT).  Consequently, we will refer to the licensee 
by its current name. 

2  The Commission's Forfeiture Policy Statement and 
Amendment of Section 1.80 of the Rules to Incorporate the 
Forfeiture Guidelines, 12 FCC Rcd 17087, 17100-01 (1997), 
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture 
Guidelines'').

3  In responding to a letter of inquiry from the staff, 
Infinity advanced a number of arguments.  Because we believe 
that we adequately addressed those arguments in the NAL, we 
do not repeat them here notwithstanding their appearance in 
Infinity's response.

4  See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern 
California Broadcasting Co., 6 FCC Rcd 4387 (1991). 

5  47 U.S.C.  503(b)(2)(D).  See also Forfeiture 
Guidelines, 12 FCC Rcd at 17100-01.   

6  Forfeiture Guidelines, 12 FCC Rcd at 17113.