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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.
) Facility ID #19525
Licensee of Station WKQX(FM), )
Chicago, Illinois )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 5, 2001 Released: April 6,
By the Chief, Enforcement Bureau:
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).
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.
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
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. §
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
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
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.