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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Emmis Radio License Corporation ) File No. EB-01-IH-0121
) NAL/Acct. No. 200232080014
Licensee of Station WKQX(FM), ) FRN 0001-5293-46
Chicago, Illinois ) Facility ID # 19525
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 27, 2002 Released: June 28,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Emmis Radio License
Corporation (``Emmis''), licensee of Station WKQX(FM),
Chicago, Illinois, apparently violated 18 U.S.C. § 1464 and
47 C.F.R. § 73.3999, by willfully broadcasting indecent
language. Based upon our review of the facts and
circumstances in this case, we conclude that Emmis is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
2. The Commission received a complaint that WKQX(FM)
broadcast indecent material on March 12, 2001 between 8:00
a.m. and 8:10 a.m. during the ``Mancow's Morning Madhouse''
(``Mancow'') program.1 The complainant submitted a tape of
the Mancow program containing the allegedly indecent
material broadcast. After reviewing the complainant's tape,
we issued a letter of inquiry to the licensee that included
a transcript of the tape submitted by the complainant. See
3. In its response, Emmis states that WKQX(FM) does
not routinely archive tapes or transcripts of its broadcasts
and did not retain tapes or transcripts of the programming
aired on March 12, 2001. Accordingly, Emmis states that it
cannot verify the accuracy of the transcript. Nevertheless,
Emmis argues that even assuming the accuracy of the
transcript, the programming at issue is not actionably
4. It is a violation of federal law to broadcast
obscene or indecent programming. Specifically, Title 18 of
the United States Code, Section 1464 (18 U.S.C. § 1464),
prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' Congress
has given the Federal Communications Commission the
responsibility for administratively enforcing 18 U.S.C. §
1464. In doing so, the Commission may, among other things,
impose a monetary forfeiture, pursuant to Section 503(b)(1)
of the Communications Act (the ``Act''), 47 U.S.C. §
503(b)(1), for broadcast of indecent material in violation
of 18 U.S.C. § 1464. Federal courts have upheld Congress's
authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme
Court has determined that obscene speech is not entitled to
First Amendment protection. Accordingly, Congress may
prohibit the broadcast of obscene speech at any time.2 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.3 Nonetheless, the federal
courts consistently have upheld Congress's authority to
regulate the broadcast of indecent speech, as well as the
Commission's interpretation and implementation of the
statute.4 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.5 Consistent with a
subsequent statute and case law,6 under the Commission's
rules, no radio or television licensee shall broadcast
obscene material at any time, or broadcast indecent material
during the period 6 a.m. through 10 p.m. See 47 C.F.R. §
5. In enforcing its indecency rule, the Commission
has defined indecent speech as language that first, in
context, depicts or describes sexual or excretory organs or
activities. Second, the broadcast must be ``patently
offensive as measured by contemporary community standards
for the broadcast medium.'' 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)). This definition has been
specifically upheld by the federal courts.7 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. ACT I, supra. As
noted above, current law holds that such times begin at 6
a.m. and conclude at 10 p.m.8
6. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law
and upheld by the courts. See Industry Guidance on the
Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency (``
Indecency Policy Statement''), 16 FCC Rcd 7999 at 8015, ¶
24. ``Given the sensitive nature of these cases and the
critical role of context in an indecency determination, it
is important that the Commission be afforded as full a
record as possible to evaluate allegations of indecent
programming.'' Id. In evaluating the record to determine
whether the complained of material is patently offensive,
three factors are particularly relevant: (1) the
explicitness or graphic nature of the description; (2)
whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities;
and (3) whether the material appears to pander or is used to
titillate or shock. See Indecency Policy Statement, supra,
16 FCC Rcd at 8003 ¶ 10.
7. The complained of material, in context, refers to
sexual and excretory organs and activities, and thus
warrants scrutiny. See Attachment. We find that the
material, in context, is patently offensive when considered
under the three factors set out in the Indecency Policy
8. The first key factor concerns whether the material
is explicit or graphic. The lyrics of ``Smell My Finger''
contain explicit and graphic sexual references, including
references to fellatio, female genitalia, ejaculation and
manual stimulation of the female genitalia. The song's
sexual import is lewd, inescapable and understandable.9 The
song, in context, has a sexual meaning that is unmistakable
and is similar to other material found to have clearly
understandable sexual references and to meet the definition
of broadcast indecency.10 Moreover, under the second key
factor, we find that the sexual references in ``Smell My
Finger'' are repeated.
9. Under the third key factor of the Indecency Policy
Statement, the material broadcast on WKQX(FM), in context,
appears to have been used to pander to and titillate the
audience and is similar to other material that has been
found to be patently offensive.11 In this regard, we reject
Emmis's argument that this material is not patently
offensive as measured by contemporary community standards.
Emmis contends that ``WKQX has been airing `Mancow's Morning
Madhouse' since July of 1998, and had received no inquiries
from the Commission concerning the program's content until
late last year.'' Emmis also asserts that the complaints
about the Mancow program, including the complaint at issue
here, were initiated by a single individual or group whose
standards do not accurately reflect those of the national
community as a whole. The identity of the complainant and
whether the complainant here is the source of other
complaints about the Mancow program is not material to our
determination under the factors set out in the Indecency
Policy Statement. The purpose of using ``contemporary
community standards'' is to ensure that material is not
judged by its effect on a particularly sensitive or
insensitive person or group.12 In this regard, looking to a
national community standard that references the average
broadcast listener, we find that the material broadcast on
WKQX(FM), in context, is patently offensive.13 Emmis does
not dispute that the complained of material was broadcast
when there was a reasonable risk that children may have been
in the audience. By broadcasting this material, WKQX(FM)
apparently violated the prohibitions against broadcast
10. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80(a) of the Commission's rules, 47 C.F.R § 1.80,
both state that any person who willfully or repeatedly fails
to comply with the provisions of the Act or the rules shall
be liable for a forfeiture penalty. For purposes of section
503(b) of the Act, the term ``willful'' means that the
violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's
rules.14 Based on the material before us, it appears that
Emmis willfully violated 18 U.S.C. § 1464 and section
73.3999 of the Commission's rules, by airing indecent
programming on WKQX(FM) on March 12, 2001.
11. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.15 The Forfeiture Policy
Statement also specifies that the Commission shall adjust a
forfeiture based upon consideration of the factors
enumerated in section 503(b)(2)(D) of the Act, 47 U.S.C. §
503(b)(2)(D), such as ``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.''16 After reviewing all of the circumstances,
we believe a $7,000 forfeiture is appropriate in this case
for the apparent broadcast of indecent material.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED, pursuant to section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, and 1.80 of the Commission's rules,17
that Emmis Radio License Corporation is hereby NOTIFIED of
its APPARENT LIABILITY FOR FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully violating 18 U.S.C.
§ 1464 and section 73.3999 of the Commission's rules.
13. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty days of the
release of this Notice, Emmis SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
14. 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 MUST INCLUDE the FCC Registration Number (FRN)
referenced above and also should note the NAL/Acct. No.
15. 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 DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
16. 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
17. 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. 20554.18
18. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to J. Scott Enright, Vice President, Associate General
Counsel and Assistant Secretary, Emmis Radio License
Corporation, 40 Monument Circle, Indianapolis, Indiana
46204 and to Emmis's counsel, Eve J. Klindera, Esq., Wiley
Rein & Fielding LLP, 1776 K Street, N.W., Washington, D.C.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Radio Station: WKQX(FM), Chicago, Illinois
Date/Time Broadcast: March 12, 2001, between 8:05 a.m
and 8:10 a.m.
Material Broadcast: Mancow's Morning Madhouse
MV: Male Cast Member
MV2: Male Cast Member
MV3: Male Voice
MR: Male Rapper
MR2: Second Male Rapper
MR3: Third Male Rapper
FV: Female Cast Member
MV3: This is Kobey Dick and we're from Buffa (?) Roach.
MV2: You're listening to Mancow's Morning Madhouse on
the Free Speech Radio Network.
MV3: Piss off. Eat a bowl of fu (bleep).
[Song: ``Smell My Finger'' ]
MR: I've never been bashful, shy, sheepish or chivalrous
when asking a lady to give me a kiss. So when she
lifted up her skirt, I didn't ask what is this.
MR: Her box had some cheese so I nicknamed her Swiss. And
so like Magellan I began to explore. Like Vasco DeGama
I cleared the cape and went for more. Like Columbus I
got lost but still managed to score. Like Ponce DeLeon
I found the fountain in her core. [Unintelligible]
Like Captain Cook I unearthed her buried treasure. My
shot was on target like Jesse James the gun slinger.
You need proof? Make like Sherlock Holmes and smell my
Chorus: Smell my finger. Smell my finger. Smell my
MR: Smell my finger. Smell that stank finger ya'all.
[female making moaning sounds].
MR2: I like the super models with the low self-esteem,
who wear the tight jeans covering up the g-strings.
Tall lanky chicks who grow out their bangs. They only
eat lettuce. They belong to the machine gangs. I take
her to dinner, I buy her some roses and then I part her
legs like the Red Sea cuz I am Moses. We smoke the
ganja. We drink from a flask. Oops, I left her a gift
on her mud mask. Will you chill with super model dead
ringers? Get ready. Folks come from all over to smell
your fingers. [female making moaning noises]
Chorus: Smell my finger. Smell my finger. Smell my
MR3: She was definitely young but she was old enough to know
what God had given her a tongue. She got a rock hard
body like a statue from Greece. I didn't catch her
name. I don't [unintelligible] when I can reach. She
lifted up her skirt when she found I was a rap singer.
You don't believe me go ahead and smell the finger.
Chorus: Smell my finger. Smell my finger. Smell my
MR3: Smell, baby. Inhale.
Chorus: Smell my finger. Smell my finger. Smell my
MR3: Check the smell, baby. Smell my fingers, just don't
smell my thumb. What's that underneath my fingernails?
FV: I don't like that song Mancow.
FV: Because it's horrible, please.
M: Really? [unintelligible comment by Mancow].
M: Anyone notice, whoever thinks it's funny, and I imagine
it's Turd. Smell my finger don't smell my thumb. I
like that lyric. That's a new group called ``No
Time.'' I don't know if it's in stores or not...
MV: Yeah, it'll be gone in no time...
M: Yeah, there you go. Ah, No Time...
MV: Should have smelled [unintelligible] leg.
M: Oh, with your wife?
FV: Oh, geeze...
*** *** *** ***
1 The complainant also referenced an excerpt of the
Mancow program from the March 12, 2001 broadcast in which
the program's host offers a reward for the killing of an
incarcerated pedophile. The complainant asks the
Commission to determine whether the host's remarks warrant
criminal charges. Such a determination is outside the
Commission's regulatory jurisdiction, and is a matter for
local law enforcement authorities.
2 See Sable Communications of California, Inc. v.
FCC, 492 U.S. 115 (1989); Miller v. California, 413 U.S. 15
(1973), rehearing denied, 414 U.S. 881 (1973).
3 Sable Communications of California, Inc. v. FCC,
supra note 2, 492 U.S. at 126.
4 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
See also Action for Children's Television v. FCC, 852 F.2d
1332, 1339 (D.C. Cir. 1988) (``ACT I''); Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.
Cir. 1991), cert denied, 112 S.Ct. 1282 (1992) (``ACT
II''); Action for Children's Television v. FCC, 58 F.3d 654
(D.C. Cir. 1995), cert denied, 116 S.Ct. 701 (1996) (``ACT
5 ACT I, supra note 4, 852 F.2d at 1344 (``Broadcast
material that is indecent but not obscene is protected by
the first amendment; the FCC may regulate such material
only with due respect for the high value our Constitution
places on freedom and choice in what people say and
hear.''). See also United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813-15 (2000).
6 Public Telecommunications Act of 1992, Pub. L. No.
356, 102nd Cong., 2nd Sess. (1992); ACT III, supra note 4.
7 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent
approval. FCC v. Pacifica Foundation, supra note 4, 438
U.S. at 732. In addition, the D.C. Circuit Court of
Appeals upheld the definition against constitutional
challenges. ACT I, supra note 4, 852 F.2d at 1339; ACT II,
supra note 4, 932 F.2d at 1508; ACT III, supra note 4, 58
F.3d at 657.
8 ACT III, supra note 4.
9 See WQAM License Limited Partnership, 15 FCC Rcd
1475 (1999), aff'd 15 FCC Rcd 2518 (2000), recon. denied 15
FCC Rcd 12549 (2000).
10 See, e.g.,WQAM License Limited Partnership, supra
note 9 (sexual references in the song ``Uterus Guy''); KGB,
Inc., (KGB-FM), 7 FCC Rcd 3207 (1992), forfeiture reduced
13 FCC Rcd 16396 (1998)(``Candy Wrapper'' song, which
includes lyrics such as ``my Butterfinger went up her tight
little Kit Kat''). See also Great American Television and
Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692,
3693 (MMB 1990); WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 3704 (MMB
11 See note 10, supra.
12 Infinity Broadcasting Corporation of Pennsylvania
(WYSPFM)), 3 FCC Rcd 930, 932 (1987)(subsequent history
omitted) citing Hamling v. United States, 418 U.S. 87, 107
13 See, e.g., WQAM License Limited Partnership
(WQAM(AM)), 15 FCC Rcd 2518, 2520 (2000)(explaining that
the Commission uses its expertise to apply a national
community standard that references the average broadcast
viewer or listener). See also, Indecency Policy Statement,
16 FCC Rcd at 8002 note 15.
14 See Southern California Broadcasting Co., 6 FCC Rcd
15 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997),
recon. denied 15 FCC Rcd 303 (1999) (Forfeiture Policy
Statement); 47 C.F.R. § 1.80(b).
16 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
17 47 C.F.R. §§ 0.111, 0.311 and 1.80.
18 See 47 C.F.R. § 1.1914.