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                         Before the
              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


Adopted:   June 27, 2002                Released:   June 28, 

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     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).

                      II.   BACKGROUND

     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 

                      III.  DISCUSSION

     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. 
referenced above.

     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.  


                         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

M:   Mancow

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?
[Song fades]

FV:  I don't like that song Mancow.

M:   Why?

FV:       Because it's horrible, please.

M:   Really?  [unintelligible comment by Mancow].  

FV:  Yeah.

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 
4387 (1991).

     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.