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

In the Matter of                  )
                                 )
Infinity Broadcasting             )     Control No. 97050319
Corporation of Los Angeles        )     NAL/Acct. No. 818ed0017
                                 )
Licensee of Station KROQ-FM       )
Pasadena, California              )
Facility ID # 28622               )



                     MEMORANDUM OPINION AND ORDER

     Adopted:  March 20, 2001           Released:  March 22, 2001 

By the Chief, Enforcement Bureau:

     1.   In  this  Memorandum  Opinion  and  Order,  we  deny  a 
petition for reconsideration filed on July 13, 2000, by  Infinity 
Broadcasting Corporation of Los Angeles (``Infinity''),  licensee 
of Station  KROQ(FM), Los  Angeles, California.   Infinity  seeks 
reconsideration of a  Forfeiture Order1 which  issued a  monetary 
forfeiture in the amount of two thousand dollars ($2,000) against 
Infinity for  willful  violation  of  18  U.S.C.    1464,  which 
prohibits the broadcast of indecent material.

                         I.   BACKGROUND

     2.   On August 24, 1998, the Mass Media Bureau, by delegated 
authority, issued a Notice  of Apparent Liability for  Forfeiture 
to Infinity in the amount  of two thousand dollars ($2,000),  for 
the  broadcast  of  indecent  material.   Infinity   Broadcasting 
Corporation of  Los Angeles  (KROQ-FM), 13  FCC Rcd  25349  (Mass 
Media Bur. 1998) (``NAL'').  Specifically, the Mass Media  Bureau 
found  that  the   broadcast  of  ``You   Suck''  by  the   group 
Consolidated on  March  28,  1997, at  approximately  9:10  p.m., 
violated 18 U.S.C.  1464.  Infinity filed a response to the  NAL 
on September 23, 1998.  Thereafter,  in the Forfeiture Order,  we 
found,  after  considering  the  licensee's  response,  that  the 
issuance of the proposed forfeiture was warranted.  

     3.   In its response  to the NAL,  Infinity admitted that  a 
version of the ``You Suck'' song was aired at approximately  9:10 
p.m. on  March  28,  1997.   It  asserted  that  Station  KROQ-FM 
possessed at  least  two  versions  of the  song,  one  of  which 
Infinity contended does not contain any indecent material. One of 
the versions possessed  by KROQ(FM) was  the original version,  a 
transcript of which is attached to the NAL.  A second version was 
made by the station because  an announcer ``thought the  unedited 
version was not  acceptable for  broadcast.''  Infinity  asserted 
that it was  unable to determine  which version of  the song  was 
aired.  In support of its  position, Infinity filed an  affidavit 
from a station announcer who admitted that he played some version 
of the ``You Suck'' song on  the day in question.  The  announcer 
stated that he did not recall  which version of the recording  he 
aired and that he did not actually listen to the entire recording 
when it aired.  The announcer  and the station's General  Manager 
also indicated that it was their opinion that numerous complaints 
would have  been forthcoming  if the  unedited version  had  been 
played.  However, they stated, no  complaints other than that  of 
the complainant were received.  Further, Infinity states that the 
station does not  retain copies  of its  broadcasts.  The  record 
reflects that the difference between the versions consists of the 
deletion  of  the  words  ``pubic,''  ``dick,''  ``pussy,''   and 
``clit'' in the edited version.  The licensee did not dispute the 
finding of the NAL that the unedited version of the song would be 
indecent.

     4.   Because the Mass Media  Bureau did not  have a tape  or 
transcript of the actual broadcast,  on April 1, 1998, before  it 
issued the NAL, it sent a  letter to the complainant with a  copy 
of the edited version of the  ``You Suck'' song.  The Mass  Media 
Bureau asked the  complainant to  confirm whether  she heard  the 
edited version or the version on  the CD that was submitted  with 
her complaint (the  original unedited version).   The Mass  Media 
Bureau also asked her  to explain the basis  of her belief as  to 
which version  she  heard  broadcast  on  Station  KROQ-FM.   The 
complainant responded by  a signed  written statement  indicating 
that  she  recalled  hearing   the  words  ``pubic,''   ``dick,'' 
``pussy,'' and ``clit'' in the broadcast she heard, none of which 
were contained  in the  edited version  of the  song provided  by 
Infinity. The complainant's  response was not  referenced in  the 
NAL and the  licensee was  not asked to  comment on  it.  It  was 
first discussed in the Forfeiture Order.

     5.   In  its  petition  for  reconsideration,  the  licensee 
argues that it was denied due process because the NAL was  issued 
on the basis of information supplied by the complainant that  was 
not disclosed to  the licensee  until after the  issuance of  the 
Forfeiture Order,  thereby depriving  it  of the  opportunity  to 
rebut the additional evidence.   It contends that the  Forfeiture 
Order erred  in  relying  on  the  untested  recollection  of  an 
individual whose character, demeanor, memory, and motivation  are 
unknown. It further  urges that the  Forfeiture Order  improperly 
ignored the  countervailing evidence  proffered by  it.  Infinity 
also reiterates its  contention advanced in  response to the  NAL 
that no forfeiture is appropriate because no tape, transcript  or 
significant excerpt of the song as actually broadcast by KROQ(FM) 
was provided, as, it contends, is required by Commission  policy.  
The licensee  argues  that  a  tape,  transcript  or  significant 
excerpt  is   a   requirement  to   protect   licensees   against 
unsubstantiated  or  spurious  indecency  complaints.   It   also 
characterizes the action here as reflecting a new policy  insofar 
as it dispenses with the tape, transcript, or significant excerpt 
requirement.  It therefore urges that at most a warning, and  not 
a  forfeiture,   is  warranted,   citing  Infinity   Broadcasting 
Corporation of  Pennsylvania, 2  FCC Rcd  2705 (1987).   In  that 
case, the Commission found actionable indecency, but issued  only 
a warning because prior rulings might have suggested that it  had 
a different view of what would be considered indecent.

                         II.  DISCUSSION

     6.   First,  we  will   address  the  licensee's   arguments 
pertaining to the complainant's supplemental response  indicating 
that she  heard the  unedited  version of  the song  because  the 
licensee was unaware of this fact prior to the Forfeiture  Order.  
Given that we  will now  fully consider  the licensee's  comments 
concerning this matter, the question as to whether it was  denied 
due process by virtue of the failure to elicit its comments at an 
earlier stage of this proceeding is moot.

     7.   The licensee does not submit any new evidence in  light 
of the  complainant's  statement.   It rather  contends  that  we 
should not accord it any evidentiary significance because of  the 
untested nature  of  the  complainant's claim.   However,  it  is 
undisputed that the licensee had both the edited and the unedited 
versions  of  the  song.   It   is  also  uncontested  that   the 
distinction between the versions is the inclusion in the unedited 
version  of  the  words   ``pubic,''  ``dick,''  ``pussy,''   and 
``clit.''  In the circumstances  of this case, the  complainant's 
uncontradicted statement that  she in fact  heard those words  in 
the song  broadcast  is  probative  evidence  that  the  unedited 
version was broadcast.  The  circumstances here are unlike  those 
in Mr. Steve  Bridges, 9  FCC Rcd  1681 (Mass  Media Bur.  1994), 
relied upon by Infinity.   That case involved  a brief, live  and 
unscripted comment  by  a  caller.  The  complainant  provided  a 
transcript, but  not  a  tape, of  the  alleged  broadcast.   The 
licensee contended  that  the  entire  transcript  had  not  been 
broadcast, which was not  contradicted.  Under the  circumstances 
of that case, the Mass Media  Bureau found that the evidence  was 
insufficient to  determine the  precise  nature of  the  caller's 
arguably indecent remark.   Here there  are two  versions of  the 
song distinguished by  the presence or  absence of the  pertinent 
words.  We believe that  the complainant's recollection that  she 
heard those  words  provides  sufficient  probative  evidence  to 
conclude that the  unedited version  of the  song was  broadcast, 
particularly in the absence of any evidence to the contrary.

     8.   It is, of course, true that the complainant's statement 
is ``untested,'' in  that no evidentiary  hearing has been  held.  
However, the  Communications Act  of 1934,  as amended  (``Act'') 
permits the  imposition of  a forfeiture  without an  evidentiary 
hearing.2   The Act also protects  the rights of parties  subject 
to a forfeiture assessed without a hearing by providing that such 
a forfeiture cannot be used to the prejudice of the party  unless 
it is paid  or a  court of  competent jurisdiction  has issued  a 
final order after a trial  de novo requiring that the  forfeiture 
be paid.3

     9.   We also find that the licensee has offered no  evidence 
contradicting the complainant's statement.  It relies principally 
on its ignorance as to which  version of the song was  broadcast.  
However, the licensee's ignorance as to what was broadcast on its 
station does not  constitute evidence  that the  station in  fact 
broadcast the edited version.  Moreover, the station was aware of 
the inappropriate nature  of the  unedited version  of the  song.  
Indeed, that is why an  edited version existed. Given this  fact, 
the licensee should  have taken  precautions to  ensure that  the 
version of the  song that  the licensee itself  recognized to  be 
inappropriate was  not inadvertently  broadcast.  A  licensee  is 
ultimately responsible for the  programming of its station.   Mr. 
Steve Bridges, supra; Trustees of the University of Pennsylvania, 
69 FCC  2d 1394,  1397 (1978).    Under these  circumstances,  it 
would be particularly inappropriate to accord evidentiary  weight 
to the licensee's ignorance that  was the product of its  failure 
to take precautions to prevent  the inadvertent broadcast of  the 
unedited version of the  song, let alone  to give the  licensee's 
ignorance greater weight than the signed statement of a listener.

     10.  The  licensee  further  relies  upon  the  opinions  of 
station personnel  that there  likely  would have  been  multiple 
complaints  if  the  station  had  aired  the  unedited  version.  
However, we find this claim  to be speculative, especially  since 
the  station  personnel  do  not  explain  the  basis  for  their 
opinions. Accordingly, we do not find that this argument  amounts 
to evidence contradicting the complainant's recollection.

     11.  Finally, we  disagree  with the  licensee's  contention 
that, by not requiring a tape, transcript or significant excerpt, 
the Forfeiture Order creates new policy that makes the assessment 
of a forfeiture inappropriate.  First, we note that the case  law 
cited by the licensee stated that the Commission would ordinarily 
require  a  complainant   to  provide  a   tape,  transcript   or 
significant  excerpts  of   the  programming.4  The   complainant 
substantially complied  with this  procedure.  Specifically,  the 
complainant provided a  copy of  the unedited version  of the  CD 
including the language that she alleged to have heard during  the 
broadcast.    The   complainant's   submission   constituted    a 
``significant excerpt'' of the programming that she alleged to be 
indecent, albeit  not one  that she  transcribed herself.   This, 
along with the date and time  of the broadcast and the call  sign 
of the  station  in question,  provided  a sufficient  basis  for 
identifying a  violation of  the indecency  prohibition.  In  any 
event, we  note that  our practice  that complainants  provide  a 
tape, transcript or significant excerpt is not a requirement, but 
a general  practice  used by  the  Commission to  assist  in  the 
evaluation of indecency complaints.

     12.  We  have   fully  considered   Infinity's   contentions 
concerning   the   complainant's    statement   confirming    her 
recollection as to the version  of the song she heard.   However, 
we do not find  that the licensee has  raised any new matter,  or 
demonstrated  any  material  error  or  omission,  that  warrants 
modification of  the  result  reached in  the  Forfeiture  Order. 
Therefore, we will deny its petition for reconsideration.

                        III.  ORDERING CLAUSES
     13.  ACCORDINGLY, IT IS  ORDERED that,  pursuant to  Section 
405 of  the  Act5  and  Section 1.106  of  the  Rules,6  Infinity 
Broadcasting   Corporation   of   Los   Angeles'   petition   for 
reconsideration IS DENIED.

     14.  Payment of the forfeiture shall  be made in the  manner 
provided for in  Section 1.80  of the Rules7  within thirty  (30) 
days of the release of this Order.  If the forfeiture is not paid 
within the  specified period,  the case  may be  referred to  the 
Department of Justice for  collection pursuant to Section  504(a) 
of the Act.8  Payment may be  made by mailing a check or  similar 
instrument, payable to the order of the ``Federal  Communications 
Commission,'' to the Federal Communications Commission, P.O.  Box 
73482, Chicago, Illinois 60673-7482.  The payment should note the 
NAL/Acct. No.  818ed0017.  Requests  for full  payment  under  an 
installment plan  should  be sent  to:   Chief, Credit  and  Debt 
Management  Center,  445  12th  Street,  S.W.,  Washington,  D.C. 
20554.9

     15.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
be sent by certified mail,  return receipt requested, to  counsel 
for Infinithy.,  Steven A.  Lerman, Esq.,  Leventhal, Senter  and 
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
_________________________

     1 Infinity Broadcasting Corporation of Los Angeles, 15 FCC 
Rcd 10667 (Enf. Bur. 2000).

     2 Section 503(b) of the Act, 47 U.S.C.  503(b).

     3 Section 504(a) and (c) of the Act, 47 U.S.C.  504(a) and 
(c).

     4 See Infinity Broadcasting Corporation of Pennsylvania, 3 
FCC Rcd 930, 938 n. 49 (1987).

     5 47 U.S.C.  405.

     6 47 C.F.R.  1.106.

     7 47 C.F.R.  1.80.

     8 47 U.S.C.  504(a).

     9 See 47 C.F.R.  1.1914.