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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. 99090433
Infinity Radio License, Inc.1 ) NAL/Acct. No.
) Facility ID #18527
Licensee of Station WLLD(FM), ) JWS
Holmes Beach, Florida )
Adopted: February 28, 2001 Released: March 2,
By the Chief, Enforcement Bureau:
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).
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
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
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
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
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. §
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
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
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
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.