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

In the Matter of                )  File No. 99090433
                                )
Infinity Radio License, Inc.    )  NAL/Acct.             No. 
2001320800008
                                )  FRN: 0004-0367-11
Licensee of Station WLLD(FM),   )  Facility ID #18527
Holmes Beach, Florida           )

                MEMORANDUM OPINION AND ORDER

   Adopted:  September 26, 2002         Released:  September 
27, 2002

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Memorandum Opinion and Order, we deny the 
petition for reconsideration filed April 2, 2001, by 
Infinity Radio License, Inc. (``Infinity''), licensee of 
Station WLLD(FM), Holmes Beach, Florida.  Infinity seeks 
reconsideration of a Forfeiture Order, which imposed a 
$7,000 forfeiture for a willful violation of 18 U.S.C.  
1464 and 47 C.F.R.  73.3999, which prohibit the broadcast 
of indecent material.  Infinity Radio License, Inc., 16 FCC 
Rcd 4825 (Enforcement Bureau 2001) (``Forfeiture Order'') 

     2.  Reconsideration is appropriate only where the 
petitioner either shows a material error or omission in the 
original order or raises additional facts not known or not 
existing until after the petitioner's last opportunity to 
present such matters.  WWIZ, Inc., 37 FCC 685, 686 (1964), 
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. 
Cir. 1965), cert. denied, 383 U.S. 967 (1966); 47 C.F.R.  
1.106(c).  A petition that simply reiterates arguments 
previously considered and rejected will be denied.  Id.; 
Gaines, Bennett Gilbert, 8 FCC Rcd 3986 (Rev. Bd. 1993).  
Review of Infinity's petition and the Forfeiture Order 
reveals that the Forfeiture Order contains no material error 
or omission and that the petition by and large repeats 
arguments already considered and rejected.  Accordingly, 
denial is warranted.  Nevertheless, we believe two of 
Infinity's arguments merit a brief discussion. 

     3.  Infinity observes that in February 2001, the Bureau 
dismissed an indecency complaint submitted against WRLR(FM), 
Homewood, Alabama.  Infinity notes that Commissioner 
Tristani objected to this dismissal because, inter alia, the 
complainant heard the word ``pussy'' used in a ``foul'' and 
``obscene'' manner.1  Infinity believes that the Forfeiture 
Order's finding that WLLD(FM) aired indecent material and 
merits a forfeiture results in prohibited disparate 
treatment.2  We disagree.  As discussed in the Forfeiture 
Order, the cited material repeatedly referred to a sexual 
activity (cunnilingus) in a patently offensive manner 
through repeated use of the phrase ``eating pussy.''  In 
this regard, we found that the offensive sexual references 
were both explicit, graphic and not fleeting.  By 
comparison, the dismissed complaint against WRLR(FM) 
provided no information which could reasonably support a 
conclusion that the use of the word ``pussy'' rendered the 
material at issue actionably indecent.  Unlike the tape 
recording of the material broadcast by WLLD(FM) (see 
Attachment), the description of the material supposedly 
broadcast by WRLR(FM) did not even show as a threshold 
matter that the offending word was actually referring to a 
sexual organ or was used in connection with the description 
of a sexual activity.  Accordingly, we reject the contention 
that, because we dismissed the complaint against WRLR(FM), 
we were likewise compelled to dismiss the complaint against 
WLLD(FM).    

     4. We also disagree with Infinity that the Commission's 
decision in WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and 
WTOM-TV), 15 FCC Rcd 1838 (2000) warrants dismissal of the 
complaint.  There, although the material at issue (scenes of 
full frontal nudity) clearly depicted sexual organs, its 
context - the subject matter of the film (Schindler's List), 
the manner of its presentation, and the warnings that 
accompanied the broadcast of the film - rendered the 
material not patently offensive as measured by contemporary 
community standards for the broadcast medium.  15 FCC Rcd at 
1542.  With respect to the utterances broadcast by WLLD(FM), 
Infinity does not point to (nor can we perceive) anything we 
have not already considered about the context of the 
material that would render it acceptable for the broadcast 
medium.  In this regard, we disagree with Infinity that the 
contextual analysis in Flambo Broadcasting, Inc., 9 FCC Rcd 
1681 (Mass Media Bureau 1994), shields the WLLD(FM) 
broadcast.  In Flambo, the Bureau addressed a complaint 
alleging that two crude jokes concerning oral sexual 
activities were indecent.  The Bureau chose not to take 
further action relative to the first joke because it could 
not resolve a conflict as to what exactly was broadcast.  In 
this regard, the licensee contended that it cut off the 
caller immediately after the offensive words were uttered.  
Thus, assuming that the joke had been cut off, the Bureau 
concluded that no violation occurred because the offensive 
broadcast at issue was brief, live, unscripted and came from 
an outside source.  By comparison, there is no dispute as to 
what WLLD(FM) broadcast, and, even though the material was 
apparently unscripted, live and from one of the concert's 
performers, it was hardly brief.  In addition, as noted 
above, the material was graphic, explicit and offensive.      

     5.  Accordingly, IT IS ORDERED, pursuant to Section 405 
of the Communications Act of 1934, as amended, 47 U.S.C.  
405, and Section 1.106 of the Commission's rules, 47 C.F.R. 
 1.106, that the petition for reconsideration filed April 
2, 2001, by Infinity Radio License, Inc. IS DENIED.

     6.  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, 
within thirty (30) days of the release of this Order.  See 
47 C.F.R.  1.80(h).  The payment MUST INCLUDE the FCC 
Registration Number (FRN) referenced above, and also should 
note the NAL/Acct. No. referenced above.  If the forfeiture 
is not paid within that time, the case may be referred to 
the Department of Justice for collection pursuant to 47 
U.S.C.  504(a). 

     7.  IT IS FURTHER ORDERED THAT a copy of this Order 
shall be sent by Certified Mail Return Receipt Requested to 
Stephen A. Hildebrandt, Vice President, Infinity Radio 
License, Inc., 2000 K Street, N.W., Suite 725, Washington, 
D.C. 20006 and to Steven A. Lerman, Esq., Leventhal, Senter & Lerman P.L.L.C., 2000 K 
Street, N.W., Suite 600, Washington, D.C. 20006-1809.
                         
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

 
                         ATTACHMENT

Radio Station:      WLLD(FM), Holmes Beach, Florida
Date/Time Broadcast:     September 11, 1999, between 6 p.m. 
and 10 p.m.
Material Broadcast: ``The Last Damn Show'' (Comments before 
a large crowd)

MV:  Male Voice


MV:  We ain't going to have no more feedback problem.  Fuck 
it.  We're going to go all the way back where you all feel 
(Unintelligible) mother fucking noise.  (Unintelligible)  
God damn, where are my pussy eating niggers?  Any my niggers 
into eating pussy?  Y'all make some noise.  Hey, where are 
the girls?  If you're eating pussy, where you at?  That's 
it.  Oh, they all like it.  I ain't eating no pussy tonight.  
If you all don't like it, fuck it.  I ain't going to beg 
you.  You like it?  [Edit]  And my dog don't give a fuck and 
we'll fuck you sucking up coke, you know.  Trying to explain 
this shit away, niggers.  I don't think y'all heard me.  
_________________________

1  See February 13, 2001, ``Press Statement of FCC 
Commissioner Gloria Tristani.'' 

2  See Melody Music, Inc. v. FCC, 345 F.2d 750 (D.C. Cir. 
1965).