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

In the Matter of                )  File Nos. EB-00-IH-0401 
Emmis FM License Corp. of Chicago  )    NAL/Acct.        No. 
200132080029
                                )  Facility ID #19525
Licensee of Station WKQX(FM),   )  
Chicago, Illinois               )

         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: April 5, 2001               Released:  April  6, 
2001

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Notice of Apparent Liability for Forfeiture 
("NAL"), we find that Emmis FM License Corp. of Chicago 
(``Emmis''), licensee of Station WKQX(FM), Chicago, 
Illinois, apparently violated 18 U.S.C.  1464 and 47 C.F.R. 
 73.3999, by willfully and repeatedly broadcasting indecent 
language.  Based on our review of the facts and 
circumstances in this case, we conclude that Emmis is 
apparently liable for a forfeiture in the amount of fourteen 
thousand dollars ($14,000).

                       II.  BACKGROUND

     2.  The Commission received complaints dated March 20, 
2000 and May 15, 2000, concerning broadcasts that aired on 
WKQX on the date of each letter.  Each complaint argued that 
on the date of the letter the station had broadcast indecent 
material on ``Mancow Morning Madhouse'' (``Mancow'') 
program.  The March complaint alleged that the host aired a 
telephone conversation with an adult-film actress who 
described ``fisting''1 in graphic detail.  The May complaint 
charges that the station aired a pre-recorded Mancow segment 
entitled ``Bitch Radio.''  The segment allegedly featured an 
interview with three women who discussed their sex lives 
generally, and oral sex in particular.  One of the questions 
allegedly asked and answered was whether the women spit or 
swallowed their partner's sperm.  The complaint also charges 
that, during this question and answer session, sounds of 
women moaning were played in the background. 

     3.  Because the two broadcasts contained apparently 
indecent material and aired between 6 a.m. and 10 a.m., we 
issued a letter of inquiry to the licensee.  In its 
response, Emmis states only that it has neither a tape nor a 
transcript and cannot determine whether the alleged 
statements were made. 
                      III.  DISCUSSION

     4.  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.''  As explained below, we believe 
that language broadcast during the two programs of 
``Mancow'' was indecent and that the licensee's broadcasts 
of that material were willful.  

     5.  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.  

     6.  After carefully considering the record before us, 
it appears that Emmis has willfully and repeatedly violated 
our indecency rule.  Emmis does not deny that it broadcast 
the material in question between 6 a.m. and 10 a.m.  Each 
segment contains material that apparently describes sexual 
activities in patently offensive terms.  Specifically, the 
March broadcast apparently described in explicit detail a 
sexual technique familiar to a female porn star, while the 
May program discussed specific aspects of fellatio and 
included the sounds of women moaning in the background.  In 
a similar situation, we found indecent portions of a radio 
station's interview of an adult-film actress who crudely 
relayed her fondness for oral sex.  See Regent Licensee of 
Flagstaff, Inc. (KZGL(FM)), 15 FCC Rcd 17286 (Enforcement 
Bureau 2000).  We have consistently deemed such material 
indecent, and we believe the same result is warranted here.  
See also Rusk Corporation (KLOL(FM)), 5 FCC Rcd 6332 (Mass 
Media Bureau 1990). 

     7.  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.  For purposes of 47 U.S.C. 
 503(b), 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.2  In assessing 
a forfeiture, we take into account 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.3  

     8.  The Commission's Forfeiture Guidelines set a base 
forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.4  After considering all the 
facts and circumstances, we believe the base forfeiture 
amount is the appropriate sanction for each of the two 
violations described above and that neither an upward nor 
downward adjustment should be made. 

                    IV.  ORDERING CLAUSES

     9.  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, 
Emmis FM License Corp. of Chicago is hereby NOTIFIED of its 
APPARENT LIABILITY FOR A FORFEITURE in the amount of 
fourteen thousand dollars ($14,000) for willfully and 
repeatedly violating 18 U.S.C.  1464 and 47 C.F.R.  
73.3999. 

     10.  IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. 
 1.80, within thirty days of this NOTICE OF APPARENT 
LIABILITY, Emmis FM License Corp. of Chicago SHALL PAY the 
full amount of the proposed forfeiture or SHALL FILE a 
written statement seeking reduction or cancellation of the 
proposed forfeiture.

     11.  Payment of the forfeiture may 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.  
The payment should note the NAL/Acct. No. referenced above.

     12.  The response, if any, must be mailed to Charles W. 
Kelley, Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 445 
12th Street, S.W., Room 3-B443, Washington, D.C. 20554 and 
MUST INCLUDE THE NAL/Acct. No. referenced above.  

     13.  The Commission will not consider reducing or 
canceling a forfeiture in response to a claim of inability 
to pay unless the respondent submits: (1) federal tax 
returns for the most recent three-year period; (2) financial 
statements prepared according to generally accepted 
accounting practices (``GAAP''); or (3) some other reliable 
and objective documentation that accurately reflects the 
respondent's current financial status.  Any claim of 
inability to pay must specifically identify the basis for 
the claim by reference to the financial documentation 
submitted.  

     14.  Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.5  

     15.  IT IS FURTHER ORDERED THAT a copy of this NOTICE 
OF APPARENT LIABILITY shall be sent by Certified Mail Return 
Receipt Requested to Emmis FM License Corp. of Chicago, 3500 
West Olive Avenue, Suite 300, Burbank, California 91505; 
with a copy to John E. Fiorini, III, Esq., Wiley, Rein & 
Fielding, 1776 K Street, N.W., Washington, D.C. 20006. 
                    
     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
 
_________________________

1  According to the complainant, ``fisting'' is a procedure 
by which a female is sexually gratified by having an entire 
hand inserted into her sexual organ.

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

3  47 U.S.C.  503(b)(2)(D).  See also 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''). 

4  Forfeiture Guidelines, 12 FCC Rcd at 17113.   

5 See 47 C.F.R.  1.1914.