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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-0315, EB-
                                 )   01-IH-0357,
Licensee of Station WKQX(FM),     )   EB-01-IH-0409
Chicago, Illinois                 )   Facility ID # 19525
                                 )
                                 )

                MEMORANDUM OPINION AND ORDER

Adopted:   August 1, 2002               Released:     August 
2, 2002

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Memorandum Opinion and Order, we dismiss as 
untimely David Edward Smith's request for reconsideration of 
two decisions issued January 28,  2002 and January 29, 2002, 
denying his indecency  complaints against WKQX(FM), Chicago, 
Illinois.1   In addition,  we deny  Mr. Smith's  request for 
reconsideration of a third  decision issued February 5, 2002 
denying his indecency complaint against WKQX(FM). 

                      II.   BACKGROUND

     2.  The  Commission received three complaints  from Mr. 
Smith alleging that WKQX(FM)  broadcast indecent material on 
April 23, 2001, May, 2, 2001, May 10, 2001 between 8:00 a.m. 
and  8:35  a.m.  during the  ``Mancow's  Morning  Madhouse'' 
(``Mancow'')  program.  Mr.  Smith  submitted  tapes of  the 
Mancow  program containing  the allegedly  indecent material 
broadcast  on   these  dates.   WKQX(FM)   broadcast  on-air 
discussions about  ``Viacreme,'' a product that  is designed 
to improve  a female's sexual response  and performance.  We 
denied Mr.  Smith's complaints, finding that  the complained 
of  material  is  not  patently  offensive  as  measured  by 
contemporary community  standards for the  broadcast medium. 
Mr. Smith filed a consolidated appeal of our denial of these 
complaints, which Emmis opposed.2




     3.  January 2002  Letters.  Mr. Smith had  30 days from 
the   dates  of   the  January   2002  letters   to  request 
reconsideration of  those decisions.  The 30-day  period for 
requesting reconsideration is a statutory requirement and is 
set forth in Section 405  of the Communications Act of 1934, 
as amended  (the ``Act'').3  47  U.S.C.  405.  See  also 47 
C.F.R.  1.106(f), which implements  section 405 of the Act.  
The  Commission  has  consistently   held  that  it  has  no 
authority to waive or extend this statutory period, even for 
as little  as one  day, absent  extraordinary circumstances, 
which Mr.  Smith has not demonstrated.4  Because Mr. Smith's 
request for reconsideration was filed on March 1, 2002, more 
than  30  days from  the  dates  of  both the  January  2002 
letters, it is  untimely and will be  dismissed with respect 
to the  complaints denied  in those decisions.  However, Mr. 
Smith's request for reconsideration  of our February 5, 2002 
letter was  filed within  the 30  day period  for requesting 
reconsideration,  and  we will  address  the  merits of  his 
request  with  respect  to   the  denial  of  his  indecency 
complaint for material that aired on April 23, 2001.  

                      III.  DISCUSSION


     4.  February 2002 Letter.  As  we noted in our February 
5,  2002 decision,  it  is  a violation  of  federal law  to 
broadcast obscene  or indecent programming. See  18 U.S.C.  
1464.   Congress   has  given  the   Federal  Communications 
Commission  the responsibility  for enforcing  section 1464.  
Although the  federal courts have held  that indecent speech 
is  protected by  the First  Amendment,5 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.6   However,  the  First  Amendment  is  a  critical 
constitutional limitation that demands we proceed cautiously 
and   with  appropriate   restraint.7   Consistent  with   a 
subsequent  statute and  case law,8  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.  
73.3999.  

     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.9    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.10 

     6.  We evaluated Mr.  Smith's complaint and applied 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,   8015     24  (2001).  
Specifically, in  determining whether the  on-air discussion 
of Viacreme was patently offensive, we considered the record 
in light  of three  factors that 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, 16 FCC 
Rcd at 8003   10. Based on this analysis,  we concluded the 
discussion of  Viacreme was not patently  offensive. In this 
regard,  we found  that  even though  the sexual  references 
concerning the  use of Viacreme were  explicit and repeated, 
in  context,  the  presentation  of this  material  was  not 
pandering and does not appear to have been used to titillate 
or shock.   The broadcast is  similar to other material with 
explicit  sexual  references   that  nevertheless  were  not 
pandering  or  used  to  titillate  or  shock.11   Thus,  we 
determined  that,  in  context,  the  on-air  discussion  of 
Viacreme  was   not  patently   offensive  as   measured  by 
contemporary community standards.12   

     7.   In seeking  reconsideration, Mr.  Smith challenges 
our  conclusion that  the  sexual references  in the  on-air 
discussion of  Viacreme, in  context, were not  pandering or 
used  to titillate  or  shock. Mr.  Smith  asserts that  the 
Mancow program  is not  about providing  useful information, 
but ``survives on its shock  value, which is often pandering 
and  titillating.''   Moreover,  in  Mr.  Smith's  view,  we 
``refuse[d]  to  act  because each  broadcast  was  examined 
individually, rather  than being  considered as part  of the 
larger and continued situation.''  In this regard, Mr. Smith 
argues  that we  should  consider ``the  entire history  and 
context of the program's broadcasts in question.'' 

     8.   We  find  that   Mr.  Smith's  arguments  fail  to 
demonstrate  any error  of law  or fact  that would  warrant 
reconsideration.    See   47   C.F.R.      1.106(d).    Any 
consideration   of  government   action  against   allegedly 
indecent programming must take account of the fact that such 
speech is protected under the First Amendment.  Moreover, in 
making  indecency  determinations,   context  is  key.   The 
Commission  evaluates the  facts of  a particular  complaint 
based upon  the actual  words and  language used  during the 
broadcast.   See  Indecency   Policy  Statement.   Thus,  in 
applying the indecency definition,  we ascertain the meaning 
and context of  those words and language as  used during the 
broadcast, not other material  broadcast on other occasions. 
As   the    Supreme   Court   has    emphasized,   indecency 
determinations must be  confined to the specific  facts of a 
particular broadcast.  FCC v.  Pacifica Foundation, 438 U.S. 
726, 742 (1978)(indecency must  be evaluated in context, and 
cannot  be adequately  judged in  the abstract).   Thus, Mr. 
Smith's  generalized   contentions  concerning   the  Mancow 
program do  not warrant  reconsideration of our  February 5, 
2002 denial of his complaint. 

                    IV.  ORDERING CLAUSES

     9.   ACCORDINGLY,  IT  IS  ORDERED  that,  pursuant  to 
Section 405 of  the Communications Act of  1934, as amended, 
(``Act'')13 and  Section 1.106 of the  Commission's Rules,14 
the request for reconsideration filed March 1, 2002 by David 
Edward Smith IS HEREBY DISMISSED as untimely with respect to 
our January  28, 2002 and  January 29, 2002  letters denying 
his indecency complaints, File Nos. EB-01-IH-0409 and EB-01-
IH-0357.  

     10.  IT  IS FURTHER  ORDERED that, pursuant  to Section 
405  of   the  Communications  Act  of   1934,  as  amended, 
(``Act'')15 and  Section 1.106 of the  Commission's Rules,16 
the request for reconsideration filed March 1, 2002 by David 
Edward Smith IS  HEREBY DENIED with respect  to our February 
5, 2002 letter denying his indecency complaint, File No. EB-
01-IH-0315.

     11.  IT IS  FURTHER ORDERED that a copy  of this Notice 
shall be  sent, by Certified Mail/Return  Receipt Requested, 
to David  Edward Smith,  10940 S. Prospect  Avenue, Chicago, 
Illinois,  60643,  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.  20006. 

                         FEDERAL COMMUNICATIONS COMMISSION


     
                         David H. Solomon
                         Chief, Enforcement Bureau
  




_________________________

     1  Our  January 28,  2002  letter  denied Mr.  Smith's 
indecency  complaint based  on  material aired  on May  10, 
2001.  EB-01-IH-0409.   Our January 29, 2002  letter denied 
Mr.  Smith's indecency  complaint  based  on material  that 
aired May  2, 2001.   EB-01-IH-0357.  Our February  5, 2002 
letter  denied Mr.  Smith's  indecency  complaint based  on 
material that aired April 23, 2001.  EB-01-IH-0315.

     2 Mr. Smith's pleading states that he is appealing the 
denial of  these three  complaints and  is directed  to the 
Investigations  and Hearings  Division  of the  Enforcement 
Bureau, which issued the denials.  For this reason, we will 
treat his appeal as a petition for reconsideration.  See 47 
C.F.R.  1.106(a)(1).

     3  See 47 U.S.C.   405, which requires a petition for 
reconsideration  to be  filed within  thirty days  from the 
date of  public notice  of the Commission's  action.  Here, 
because  our  denial  letters  were not  published  in  the 
Federal Register, were not released to the public, and were 
not announced in a public notice, the date appearing on the 
letters  is the  date of  public notice.   See 47  C.F.R.  
1.4(b)(5).  

     4 The exception for ``extraordinary circumstances'' is 
a  narrow one,  and applies  when the  Commission fails  to 
follow  its procedural  rules for  providing notice  of its 
decision. See Gardner v. FCC, 530 F.2d 1086, 1091 (D.C. Cir 
1976). Mr.  Smith did not  allege that there  was defective 
notice that made  it reasonably impossible for  him to meet 
the  filing deadline  for  requesting reconsideration  with 
respect to the January  2002 decisions. See, e.g., Adelphia 
Communications Corporation, 12 FCC  Rcd 10759, 10760 note 9 
(1997), citing Gardner, 530 F.2d at 1091-92 note 24.   

     5 Sable Communications of California, Inc. v. FCC, 492 
U.S. 115 (1989).  

     6  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 
III'').

     7 ACT I,  supra note 6, 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).  

     8 Public  Telecommunications Act of 1992,  Pub. L. No. 
356, 102nd Cong., 2nd Sess. (1992); ACT III, supra note 6.

     9  In FCC  v.  Pacifica Foundation,  supra, the  Court 
quoted  the  Commission's   definition  of  indecency  with 
apparent approval.  FCC v.  Pacifica Foundation, supra, 438 
U.S.  at  732.  In  addition,  the  D.C. Circuit  Court  of 
Appeals  upheld   the  definition   against  constitutional 
challenges.  ACT I, supra note 6, 852 F.2d at 1339; ACT II, 
supra note 6,  932 F.2d at 1508; ACT III,  supra note 6, 58 
F.3d at 657.

     10 ACT III, supra note 6.

     11  Compare Indecency  Policy Statement  16 FCC  Rcd at 
8011-12, and  cases cited  therein with Citicasters  Co., 15 
FCC  Rcd  19095  (EB  2000)(forfeiture  paid)(discussion  of 
sexual  techniques lead  by  sex  therapist, which  included 
comments  such  as  ``oh   yeah,  baby''  is  pandering  and 
titillating and therefore patently offensive). 

     12   We also  found  that  the program's  introduction 
contains fleeting and isolated  remarks that do not warrant 
Commission sanction,  particularly in light of  the overall 
context  of   the  on-air  discussion  of   Viacreme  which 
followed. See, e.g., L.M. Communications of South Carolina, 
Inc.(WYBB(FM)), 7 FCC Rcd 1595 (MMB 1992).

     13  47 U.S.C.  405.

     14  47 C.F.R.  1.106.

     15  47 U.S.C.  405.

     16  47 C.F.R.  1.106.